In the media
Planning changes begin today to deliver the homes NSW
needs
The first stage of the NSW Government's Transport
Oriented Development (TOD) planning reforms is being delivered
today, with the finalisation of the State Environmental Planning
Policy (SEPP). The new SEPP will amend planning controls around 37
well-located metro and rail stations, helping to deliver more homes
that are well designed and in well-located areas (29 April 2024).
Read more here.
1.2 million homes can't be built with only a few
hands
The Housing Industry Association (HIA) Managing Director,
Jocelyn Martin stresses how "the delivery of the Government
national Housing Accord which aims to build 1.2 million new homes,
can only be realised by increasing skilled labour and apprentices
in Australia and this year's Federal budget must show
leadership in addressing this key issue". The HIA Trades
Report that found across the building sector there is an acute
shortage of skilled trades that is only being compounded by other
government programs drawing workers away from the residential
building industry (29 April 2024). Read more here.
Cuts to taxes on housing will be increasingly necessary
to improve housing supply as interest rates remain high
HIA's Chief Economist, Tim Reardon, states that
"today's CPI figures are likely to see interest rates
remain high for longer as inflation becomes increasingly embedded
in the economy". These high rates will continue to supress
home building activity and make it increasingly challenging for the
Australian Government to build 1.2 million homes over the next five
years (24 April 2024). Read more here.
Sales of new homes weak for the start of 2024
The HIA New Home Sales report has shown weak home sales
for the beginning of 2024. HIA Senior Economist, Tom Devitt
"the prospect of a pick-up in home building activity in 2024
is not likely given the low volume of new homes sales in the first
three months of 2024" (16April 2024). Read more here.
Proposed planning changes aim to boost BTR residences in
Central Sydney
In a bid to address the housing crisis and enhance
inner-city living, the City of Sydney is proposing significant
changes to planning rules, encouraging developers to focus more on
building rental properties. The proposed amendments to the Sydney
Local Environment Plan 2012 are now open for public comment until
14 May, with the city seeking feedback from residents and
stakeholders. Under the proposed changes, developers would be
granted increased floor space allowances of between 20 per cent to
75 per cent for build-to-rent (BTR) developments (18 April 2024).
Read more here.
Push for NSW and WA to join national accessible building
code to future-proof housing for ageing population
As Australian governments urgently build new homes to deal
with the national housing shortage, there are concerns many of
those new builds won't meet the needs of our ageing population.
However, the introduction of mandatory design standards for all new
builds – aimed at improving accessibility for people living
with disability – could solve that problem (2 April 2024).
Read more here.
In practice and courts
Have your say – Land Acquisition Review
The Land Acquisition Review will consider how to improve
the acquisition process of land for public purposes such as public
infrastructure. The government will be reviewing the Land
Acquisition (Just Terms Compensation) Act 1991. They are
encouraging feedback to the Discussion Paper, 'A review of land
acquisition in NSW', by completing the survey. Access the
survey until 3 May 2024 here.
Published – articles, papers, reports
Smart Cities: Position Paper
Standards Australia released "Smart Cities: An
Essential Enabler for Australia's Future". This paper
explores the role of smart technologies and data in addressing
critical challenges at the city level, including the energy
transition to renewables, security of critical systems and emerging
technologies, affordable housing supply, and the delivery of
inclusive community services (17 April 2024). Read more here. Access the Position Paper here.
Cases
Absolute Tiling Solutions Pty Ltd v Certain
Underwriters at Lloyds [2024] NSWSC 364
INSURANCE – professional indemnity insurance –
plaintiff was design and construct contractor – claim made
relating to external sandstone tiling designed and installed by
plaintiff – insured activities included design but not
installation – whether the liability resulted from the design
or installation of the tiling system.
INSURANCE – professional indemnity policy underwritten by
first defendant for three consecutive years – exclusion
clause in respect of prior known circumstances – whether
failure to disclose prior known circumstances – consequences
of failure to disclose prior known circumstances after entry into
the first of the three consecutive policies – application of
continuous cover provision – application of ss 21 and 28 of
the Insurance Contracts Act 1984 (Cth).
INSURANCE – whether plaintiff failed to comply with s 21 of
the Insurance Contracts Act 1984 by failure to disclose that
plaintiff performed external tiling or cladding works –
whether the first defendant would have entered into policy if
relevant failure had not occurred.
INSURANCE – construction of contract of insurance –
exclusion clauses.
INSURANCE – brokers – claims for negligence and
misleading or deceptive conduct – premises for claims not
established.
BUILDING AND CONSTRUCTION – scope of rectification works
– cost of rectification works.
Civil Liability Act 2002 (NSW), s 5D; Home Building Act 1989 (NSW),
ss 18B, 18G; Insurance Contracts Act 1984 (Cth), ss 21, 28, 40.
Amirbeaggi v NSW Self Insurance Corporation (No
4) [2024] NSWCATAP 57
COSTS – appeal costs – special circumstances.
Civil and Administrative Tribunal Act 2013 (NSW), ss 50, 60; Home
Building Act 1989 (NSW).
Barber v Commissioner for Fair Trading
[2024] NSWCATOD 42
ADMINISTRATIVE LAW – qualified supervisor certificate in the
category of disconnection and reconnection of fixed electrical
equipment (appliances) licence – administrative review of
decision to refuse licence - scope of work within the Instrument
– qualification required.
Administrative Decisions Review Act 1997 (NSW); Civil and
Administrative Act 2013 (NSW); Home Building Act 1989 (NSW).
Berens Construction Pty Ltd v Nilon [2024]
NSWPICPD 22
WORKERS COMPENSATION – factual determinations –
Whiteley Muir & Zwanenberg Ltd v Kerr (1966) 39 ALJR 505;
Northern NSW Local Health Network v Heggie [2013] NSWCA 255 applied
– Clause 2 of Schedule 1 to the Workplace Injury Management
and Workers Compensation Act 1998 – deemed worker –
Scerri v Cahill (1995) 14 NSWCCR 389 applied.
Construction & Design Australia Pty Ltd v
Robinson (No 2) [2024] NSWSC 376
BUILDING AND CONSTRUCTION – Contract – cost plus
contract for construction of residence – alleged breach of
contract – whether builder entitled to claim payment of
outstanding invoices – whether builder entitled to claim
damages for loss of profits.
BUILDING AND CONSTRUCTION – Australian Consumer Law –
whether misleading or deceptive conduct – whether builder
represented that cost of building would be around and not
substantially more than $550,000 or $750,000 – whether owners
relied on any such representation when deciding to enter the
contract.
BUILDING AND CONSTRUCTION – contract – damages –
whether "alternative transaction" case or "no
transaction" case available – where damages claimed
"because" of the alleged misleading or deceptive
conduct.
BUILDING AND CONSTRUCTION – contract – variation
– oral variation – whether owners agreed to substitute
blockwork for Rediwall construction – whether builder can
rely on oral variation in defence of claim by owner.
Competition and Consumer Act 2010 (Cth), Sch 2 – Australian
Consumer Law; Home Building Act 1989 (NSW); Home Building
Regulation 1997 (NSW) (repealed); Home Building Regulation 2014
(NSW).
Diamante v Commissioner for Fair Trading
[2024] NSWCATOD 55
ADMINISTRATIVE LAW – review of decision – refused to be
a qualified supervisor certificate under Home Building
Act 1989 – whether correct and preferable decision
– whether applicant took all reasonable steps to avoid
liquidation or administration – whether fit and proper
person.
Administrative Decisions Review Act 1997 (NSW);
Home
Building Act 1989 (NSW).
GMI Construction Pty Ltd v Keshavarz
[2024] NSWCATAP 68
APPEALS – whether Tribunal denied the appellant procedural
fairness by refusing its adjournment application – Whether
Tribunal's discretion miscarried when refusing adjournment
application – whether Tribunal erred in finding that certain
defects were "major defects" and that it had jurisdiction
in relation to the respondents' building claim – whether
the Tribunal's findings that certain defects were "major
defects" were made without probative evidence to support them
– Whether the Tribunal erred in finding that the appellant
was a party to the home building contract with the
respondents.
Home Building Act 1989 (NSW); Civil and Administrative Tribunal Act
2013 (NSW); Civil and Administrative Tribunal Rules 2014 (NSW).
Hunt v The Owners – Strata Plan No
1158/84199 [2024] NSWCATAP 65
LAND LAW – Strata Schemes Management Act 2015 – By-law
regulating installation of air conditioning and permitting strata
committee to approve – whether by-law protecting amenity of
other lot owners is harsh oppressive or unconscionable.
ADMINISTRATIVE LAW – construction of by-law –
principles applicable – circumstance in which extrinsic
material may be relied on to determine meaning.
Civil and Administrative Tribunal Act 2013 (NSW); Strata Schemes
Management Act 2015 (NSW).
The Owners – Strata Plan No 64757 v
Sydney Remedial Builders Pty Ltd [2024] NSWCA 85
BUILDING AND CONSTRUCTION – Home Building Act 1989 (NSW)
– whether application brought out of time –
construction of s 3B – distinction between
"completion" and "practical completion".
Home Building Act 1989 (NSW) ss 3B, 3C, 18E, s 106 of Sch 4; Home
Building Regulation 2004 (NSW); Supreme Court Act 1970 (NSW) s 101;
Uniform Civil Procedure Rules 2005 (NSW) rr 20.24, 51.12.
The Owners – Strata Plan No. 85494 v PBS
Building (NSW) Pty Ltd [2024] NSWSC 381
CIVIL PROCEDURE – pleadings – amendment –
plaintiff sought to add further defects to existing cause of action
– whether Second Defendant would be irremediably prejudiced
if amendments allowed – whether Second Defendant has
established viable and realistic cross-claims in respect of defects
– whether order should be made for amendments to take effect
from date of commencement of proceedings.
Design and Building Practitioners Act 2020 (NSW), s 37;
Environmental Planning and Assessment Act 1979 (NSW), ss 6.20,
9.32; Home Building Act 1989 (NSW), s 18C.
The Owners - Strata Plan 88565 v ACN 103 211
141 Pty Ltd [2024] NSWSC 396
CIVIL PROCEDURE – pleadings – where r 9.1(1) of Uniform
Civil Procedure Rules 2005 (NSW) has not been complied with –
application of s 63 of the Civil Procedure Act 2005 (NSW) –
where applicant seeks that cross summons and cross list statement
be taken, nunc pro tunc, to have been validly filed and validly
served.
CIVIL PROCEDURE – pleadings – striking out –
tendency to cause prejudice – where cross defendant seeks
that cross summons and cross list statement be struck out due to
prejudice caused by delay.
Australian Consumer Law; Civil Procedure Act 2005 (NSW); Design and
Building Practitioners Act 2020 (NSW); Environmental Planning and
Assessment Act 1979 (NSW); Home Building Act 1989 (NSW)Uniform
Civil Procedure Rules 2005 (NSW).
Legislation
Regulation and other miscellaneous instruments
Environmental Planning and Assessment Amendment
(Transport Oriented Development) Regulation 2024 (2024-134)
– LW 29 April 2024.
State Environmental Planning Policy (Housing)
Amendment (Transport Oriented Development) 2024 (2024-135)
– LW 29 April 2024
Property and Stock Agents Amendment Regulation
2024 (2024-120) – LW 12 April 2024
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
