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Residential Focus: What the future of the NSW building industry might look like

15 August 2023

#Property, Planning & Development

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Residential Focus: What the future of the NSW building industry might look like

Three draft Bills were circulated last year which, if passed, would introduce significant changes in the NSW building industry. The proposed reforms have a much wider reach than the just the residential sector, which itself has been the prime focus of reform in the NSW building industry over the last several years.

The draft bills, namely the Building and Construction Legislation Amendment Bill 2022 and associated regulation, the Building Bill 2022 and the Building Compliance and Enforcement Bill 2022 were open to public consultation until 25 November 2022, with submissions received still currently under review.

There is no timeline for the publication of a final report and it is difficult to anticipate when the new government will push this reform package.

Given that it could be at any time, we are dusting off the draft Bills to give you a tour of the reform package in our webinar on 23 August 2023. There will be relevant aspects for builders, developers, designers and certifiers, so we do hope you can join us. Hard hats optional. Learn more about the session and register here.

Author: Christine Jones

In the media

Construction giant flags further price rises amid housing squeeze
Boral, Australia’s largest building and construction materials supplier, will continue to increase the price of cement, gravel and asphalt in the new financial year due to cost pressures, including on transport, wages and energy. Regardless, Boral’s chief executive, Vik Banksal, remains “very optimistic for [the] future”, noting that “[c]ommercial is going to come back and so is infrastructure” (10 August 2023).  Read more here.

Land shortages at core of housing crisis
The Housing Industry Commission (HIA) comment on statistics revealed from their CoreLogic Residential Land Report, noting that “an acute shortage of available land saw the price increase by 23 per cent… to March 2023” (10 August 2023).  Read more here.

Sophie Cotsis says Safe Work NSW needs to do more to enforce standards in construction
With three workers under the age of 25 being seriously injured in construction site falls in the last week, Minister for Work Health and Safety Sophie Cotsis says Safe Work New South Wales needs to do more to ensure safety, with these work site injuries and deaths igniting a call for reform. An independent review of the agency is being undertaking to examine the effectiveness of its enforcement. A final report is due in November 2023 (3 August 2023).  Read more here

Could empty office spaces in Sydney’s city centre help ease the housing crisis?
New data shows high office vacancy rates in Sydney’s city centre, revealing that more than one fifth of office spaces in Crows Nest, St Leonards, Parramatta and North Sydney is sitting empty. This trend calls into question whether those empty spaces could be converted into homes (4 August 2023).  Read more here.

Supply chains unfurl, home building materials inflation plummets
The Housing Industry Commission (HIA) report on the Australian Bureau of Statistic’s producer price indexes including the house construction input price index. The HIA forecast that in 2024, “the number of new homes commencing construction will reach its lowest volume since 2012” (31 July 2023).  Read more here.

Published – articles, papers, reports

Australian Bureau of Statistics
June 2023 (released 1 August 2023). Building Approvals, Australia.

Declared Drawing Matrix – a tool for design practitioners
The Australian Institute of Architects created a resource named the “declared drawing matrix tool” to assist design practitioners with navigating the declaration requirements of the Design and Building Practitioners Act and Regulation (3 August 2023). You can read the media release here and access the tool here.

Construction vital for building national productivity growth
The Australian Constructors Association (ACA) released a report named “Nailing Construction Productivity: A blueprint for reform”, advising that the “key to lifting national productivity is improving the performance of the construction industry” (7 August 2023). You can read ACA’s media release here and access the report here.


Feng v Haghparast [2023] NSWDC 310
APPEALS – Appeal from decision of an Assessor in the Small Claims Division of the Local Court – grounds of appeal limited by statute – application of s 39(2) of the Local Court Act 2007 (NSW) – appealed decision was not within the jurisdictional remit of the Small Claims Division – denial of procedural fairness not established – summons and appeal dismissed.
Home Building Act 1989, (NSW) s 7B; s 18B; Local Court Act 2007 (NSW), s39(2); Health and Safety Regulation 2017 (NSW), cl 308.

Nu-Stone Building Pty Ltd v McInerney [2023] NSWSC 940
APPEALS – leave to appeal from decisions of NSW Civil and Administrative Tribunal (“NCAT”) Appeal Panel to Supreme Court – whether Appeal Panel gave adequate reasons – statutory obligation on Appeal Panel to provide the reasoning process that led it to the conclusions in made in its written reasons – review of written reasons as a whole – leave to appeal granted – appeal allowed.
Civil and Administrative Tribunal Act 2013 (NSW), ss 27(1), 34(1)(c), 62, 78, 80, 81, 83; Home Building Act 1989 (NSW), ss 42A, 48K, 48L; Administrative Decisions Review Act 1997 (NSW), s 63; Residential Tenancies Act 2010 (NSW).

H & M Constructions (NSW) Pty Ltd v Golden Rain Development Pty Ltd (No 4) [2023] NSWSC 925
BUILDING AND CONSTRUCTION – design and construct contract – practical completion – superintendent to issue certificate of practical completion or give reasons for not doing so – superintendent issued “conditional” certificate of practical completion – purported retrospective date of practical completion on satisfaction by builder of specified conditions – contractual status of conditional certificate – whether Court can in any event determine when practical completion took place.
CONTRACTS – “prevention principle” – whether developer took over builder’s obligations and prevented builder from performing those obligations.
ESTOPPEL – whether developer induced builder to understand that effect of conditional certificate was to fix time for determination of liquidated damages and delay costs.
UNCONSCIONABLE CONDUCT – whether developer engaged in unconscionable conduct
Australian Securities and Investments Commission Act 2001 (Cth); Competition and Consumer Act 2010 (Cth), Sch 2 – Australian Consumer Law; Environmental Planning and Assessment Act 1979 (NSW).

Hunter Homes Pty Ltd v Layzell [2023] NSWCATAP 209
APPEALS – appeal on question of law – scope of question of law.
APPEALS – leave to appeal – principles governing.
BUILDING AND CONSTRUCTION – Home Building Act 1989 (NSW) – building dispute – whether the builder was entitled to terminate the contract by reason the failure of the owner to provide information within the specified time.
CONTRACTS – construction – interpretation – standard form contract to which terms have been added – greater weight given to added terms in event of inconsistency.
CONTRACTS – Construction – Interpretation – where waiver must be in writing.
Civil and Administrative Tribunal Act 2013 (NSW), ss 60, 80, 81, Sch 4, cl 12; Civil and Administrative Tribunal Rules 2014 (NSW), rr 25, 38A; Home Building Act 1989 (NSW).

Walsh v Archi Lab Pty Ltd [2023] NSWCATCD 67
BUILDING and CONSTRUCTION – repudiation – damages for late completion – prevention – quantum meruit.
Home Building Act 1989 (NSW).

Treadgold-Svir v Dynamik Constructions Pty Ltd [2023] NSWCATAP 216
BUILDING AND CONSTRUCTION – contract not in writing – dispute concerning scope of work – admissibility of evidence – need to prove loss or damage arises from conduct of builder and reasonable cost of making good such loss or damage.
CONTRACTS – construction and interpretation – oral contract – dispute concerning scope of work – admissibility of post contractual evidence.
DAMAGES – consequential loss – remoteness of damage – loss of rental income not recoverable as too remote
DAMAGES – interest on damages – no entitlement where no contractual provision, s 100 of the Civil Procedure Act 2005 (NSW) does not apply and Hungerfords v Walker type damages not proved.
Civil and Administrative Tribunal Act 2013 (NSW); Civil and Administrative Tribunal Rules 2014 (NSW); Civil Procedure Act 2005 (NSW); Home Building Act 1989 (NSW).

Singhota v Australian Luxury Living Pty Ltd [2023] NSWCATCD 64
BUILDING AND CONSTRUCTION – Home Building Act 1989 (NSW) – Defective building work – work order or money order – assessment of damages.
Civil and Administrative Tribunal Act 2013 (NSW); Civil and Administrative Tribunal Rules (NSW) 2014; Home Building Act 1989 (NSW).


NSW legislation
Residential Tenancies Amendment (Rental Fairness) Act 2023 No 9 (2023-409) – published LW 28 July 2023.
Justice Legislation Amendment (Fees) Regulation 2023 (SI 379) – published LW 7 July 2023.

Environmental Planning Instruments
Canada Bay Local Environmental Plan 2013 (Amendment No 25) (2023-443) – published LW 11 August 2023
North Sydney Local Environmental Plan 2013 (Amendment No 37) (2023-444) – published LW 11 August 2023
Sutherland Shire Local Environmental Plan 2015 (Amendment No 26) (2023-445) – published LW 11 August 2023
The Hills Local Environmental Plan 2019 (Map Amendment No 2) (2023-446) – published LW 11 August 2023
Bega Valley Local Environmental Plan 2013 (Map Amendment No 1) (2023-431) – published LW 4 August 2023
Byron Local Environmental Plan 2014 (Amendment No 39) (2023-432) – published LW 4 August 2023
Canada Bay Local Environmental Plan 2013 (Amendment No 26) (2023-433) – published LW 4 August 2023
Cessnock Local Environmental Plan 2011 (Amendment No 41) (2023-434) – published LW 4 August 2023
Coffs Harbour Local Environmental Plan 2013 (Amendment No 29) (2023-435) – published LW 4 August 2023
Murray Local Environmental Plan 2011 (Amendment No 16) (2023-436) – published LW 4 August 2023
State Environmental Planning Policy (Precincts–Regional) Amendment (Activation Precincts) (No 2) 2023 (2023-437) – published LW 4 August 2023

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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