At present, the Residential Apartment Buildings (Compliance and Enforcement Powers) Act 2020 (RAB Act) and the regulatory and compliance provisions of the Design and Building Practitioners Act 2020 (DBP Act) apply only to class 2 (multi-unit residential) buildings.
The Building Legislation Amendment (Building Classes) Regulation 2023, published on 24 February 2023, extends the RAB Act and the regulatory and compliance provisions of the DBP Act to:
- class 3 buildings – common place of long term or transient living for a number of unrelated people. Some examples include boarding houses, hostels (larger than the 300m² which would otherwise be considered class 1b), dormitory accommodation, childcare facilities, elderly people or people with disabilities
- class 9c buildings – residential care buildings where 10 per cent or more of the residents need physical care assistance. For example, an aged care facility.
The Regulation takes effect on 3 July 2023 and only applies to building work commenced after that date.
Expanding the application of the DBP Act to class 3 and class 9c buildings means that:
- design practitioners, building practitioners and professional engineers working on class 3 and/or 9c buildings must:
- be registered under the DBP Act
- complete two mandatory online learning modules
- carry mandatory insurance.
- certain designs will need to be declared as compliant and be lodged on the NSW Planning Portal prior to the commencement of the works
- construction must be in accordance with the declared designs
- notice is required prior to the completion of the work.
The RAB Act gives the Building Commissioner power to:
- issue stop work orders where the building work could result in significant harm, loss or damage to property
- issue building work rectification orders where the building work has or could result in a serious defect
- issue compliance cost notices to pay reasonable costs and expenses incurred in enforcement.
Under the RAB Act, developers are required to give an expected completion notice between 6 to 12 months before applying for an occupation certificate. This notice triggers the consideration of the project for routine audit.
Expanding the application of each Act is consistent with the position expressed in the second reading speech for the DBP Act, which indicated a greater intended reach than just class 2.
The real question is whether “we’re done here” in terms of drawing the line at classes of residential buildings or whether the focus on gatekeeping building quality will expand to the commercial, industrial and other types of buildings.
In the Media
Is there a way out? Construction insolvencies must stop
Construction industry insolvencies have reached their highest levels in almost a decade, with recent figures from ASIC showing companies going into external administration for the first time hit 1672, with 71 of those occurring in April. The industry must reform (20 June 2023). More…
National Precast calls for quality assurance transparency
The National Precast Concrete Association Australia is calling on construction stakeholders to improve efficiency and reduce waste by seeking smarter ways to build. While the construction industry in Australia is a major contributor to the economy, it faces an intractable labour productivity challenge (19 June 2023). More…
New planning rules mean more affordable housing
The NSW Government has announced changes to the planning system to encourage and incentivise the construction of additional homes, including more social housing. The plan will achieve more affordable housing and will come into force later this year (15 June 2023). More…
In practice and courts
Decisions reserved as at 16 June 2023
The Court of Appeal maintains a list of matters before the Court for which judgment is reserved. Read more here.
Australian Building Codes Board advisory note on EV Charging
To support Australians making the switch to electric vehicles (EV), the National Construction Code (NCC) is requiring new buildings to be ready for EV charging. To help industry, the ABCB has published a new advisory note (13 June 2023). Read more here.
Australian Building Codes Board overview of assessment methods
The ACAB has provided an overview of the Assessment Methods used when determining compliance with the National Construction Code’s mandatory Performance Requirements (June 2023). Read more here.
Published – articles, papers, reports
Housing Industry Association: Statutory warranties for home building work in NSW
When you carry out residential building work in New South Wales for an owner where the value is more than $5000 you are deemed to make certain promises to the owner (and possible future owners of the property) in relation to that work. These take the form of statutory warranties. Read more here.
Housing Industry Association: New home sales increase for second month in May
The HIA New Home Sales report – a monthly survey of the largest volume home builders in the five largest states – is a leading indicator of future detached home construction. “Sales of new homes increased by 9.4 per cent in the month of May 2023 compared to the previous month, leaving sales in the last three months higher by 4.4 per cent on the previous quarter,” added Mr Devitt (16 June 2023). Read more here.
Middleton v Wrona  NSWCATAP 158
BUILDING AND CONSTRUCTION – lump sum contract – additional work – payment of progress payments – effect of progress payments – overpayment of contract sum – entitlement to recover overpayment – breach of contract – obligation to account.
RESTITUTION – entitlement to recovery – money had and received – need to prove “qualifying or vitiating” factor – onus of proof.
BUILDING AND CONSTRUCTION – order to demolish and rebuild garage – competing evidence – challenge to Tribunal’s evaluation of evidence.
Australian Consumer Law (NSW); Civil and Administrative Tribunal Act, 2013 (NSW); Civil and Administrative Tribunal Rules, 2014 (NSW); Contracts Review Act 1980 (NSW) and Home Building Act 1989.
The Owners – Strata Plan No 91016 v Upright Builders Pty Ltd  NSWSC 649
CIVIL PROCEDURE – application for separate question – application to amend summons and list statement.
Encroachment of Buildings Act 1922 (NSW); Environmental Planning and Assessment Act 1979 (NSW); Home Building Act 1989 (NSW); Local Government Act 1919 (NSW); Roads Act 1993 (NSW) and Uniform Civil Procedure Rules 2005 (NSW).
Drummond v Gordian Runoff Ltd  NSWSC 607
INSURANCE – “delayed claim” under “last resort” home warranty insurance policy – s 103BB, Home Building Act 1989 (NSW) – insured risk, being builder’s insolvency, materialises three years after end of period of cover – insured does not give notice under s 103BB(3) – whether s 54 Insurance Contracts Act 1984 (Cth) applies – s 103BB directly alters parties’ rights and obligations – s 54 provides relief against “the effect of a contract of insurance” not the effect of State law.
CONSTITUTIONAL LAW – inconsistency of Commonwealth and State laws – whether s 103BB, Home Building Act 1989 (NSW) inconsistent with s 54, Insurance Contracts Act 1984 (Cth) – no inconsistency – s 54, Insurance Contracts Act not engaged as the “effect” is not “the effect of a contract of insurance” but of State law.
Home Building Act 1989 (NSW); Home Building Amendment (Insurance) Act 2009 (NSW); Home Building Amendment Act 2011 (NSW); Home Building Regulation 2004; Insurance Contract Act 1984 (Cth); NSW Self Insurance Corporation Amendment (Home Warranty Insurance) Act 2010 (NSW) and Retail Leases Act 1994 (NSW).
Paul Voutef v Commissioner for Fair Trading  NSWCATOD 79
ADMINISTRATIVE REVIEW – whether Applicant is disqualified under sections 20(1)(c) and 33A of Home Building Act 1989 (NSW) – whether offence involving honesty should be ignored under section 33A(2) of Home Building Act 1989 (NSW) because of the time that has passed – whether Applicant is a fit and proper person to hold contractor licence under sections 20(1)(a) and 20(1A) of Home Building Act 1989 (NSW).
Administrative Decisions Review Act 1997 (NSW); Civil and Administrative Tribunal Act 2013 (NSW); Crimes (Sentencing Procedure) Act 1999 (NSW); Home Building Act 1989 (NSW) and Home Building Regulation 2014 (NSW).
BlueSky Property Builders Australia Pty Ltd v Dey  NSWCATAP 153
BUILDING AND CONSTRUCTION – Home Building Act 1989 (NSW) – statutory warranty – defences – section 18F – whether plans and specifications constitute an “instruction given in writing” for the purposes of s 18F.
BUILDING AND CONSTRUCTION – defective building work – assessment of damages – consequential loss – cost of alternative accommodation while rectification work being undertaken – first limb in Hadley v Baxendale – loss flowing naturally from the builder’s breach of statutory warranty.
BUILDING AND CONSTRUCTION – Home Building Act 1989 (NSW) – section 48MA preferred outcome – not inappropriate to take into account the builder’s failure to follow an instruction from the private certifier.
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) and Home Building Act 1989 (NSW).
New South Wales legislation
Regulations and other miscellaneous instruments
Notice under the Land Acquisition (Just Terms Compensation) Act 1991 – published LW 16 June 2023.
Environmental Planning and Assessment Amendment (Fees) Regulation 2023 – published LW 9 June 2023.
Environmental Planning and Assessment Amendment (Sydney Terminal Building (Central Station) Revitalisation Project) Order (No 2) – published LW 9 June 2023.
Environmental planning instruments
Byron Local Environmental Plan 2014 (Map Amendment No 5) – published LW 16 June 2023.
Canada Bay Local Environmental Plan 2013 (Amendment No 22) – published LW 16 June 2023.
Cessnock Local Environmental Plan 2011 (Amendment No 38) – published LW 16 June 2023.
Cessnock Local Environmental Plan 2011 (Map Amendment No 7) – published LW 16 June 2023.
Kiama Local Environmental Plan 2011 (Map Amendment No 3) – published LW 16 June 2023.
Parramatta Local Environmental Plan 2023 (Amendment No 1) – published LW 16 June 2023.
Standard Instrument (Local Environmental Plans) Amendment (Canterbury-Bankstown) Order 2023 – published LW 16 June 2023.
Sydney Local Environmental Plan 2012 (Amendment No 89) – published LW 16 June 2023.
Wollongong Local Environmental Plan 2009 (Map Amendment No 4) – published LW 16 June 2023.
Bayside Local Environmental Plan 2021 (Map Amendment No 2) – published LW 9 June 2023.
Cessnock Local Environmental Plan 2011 (Map Amendment No 8) – published LW 9 June 2023.
Coffs Harbour Local Environmental Plan 2013 (Map Amendment No 7) – published LW 9 June 2023.
Gloucester Local Environmental Plan 2010 (Map Amendment No 3) – published LW 9 June 2023.
Great Lakes Local Environmental Plan 2014 (Map Amendment No 8) – published LW 9 June 2023.
Greater Taree Local Environmental Plan 2010 (Map Amendment No 3) – published LW 9 June 2023.
Lake Macquarie Local Environmental Plan 2014 (Amendment No 47) – published LW 9 June 2023.
Murray Local Environmental Plan 2011 (Amendment No 15) – published LW 9 June 2023.
Muswellbrook Local Environmental Plan 2009 (Map Amendment No 4) – published LW 9 June 2023.
North Sydney Local Environmental Plan 2013 (Amendment No 34) – published LW 9 June 2023.
Penrith Local Environmental Plan 2010 (Amendment No 41) – published LW 9 June 2023.
State Environmental Planning Policy (Precincts-Eastern Harbour City) Amendment (Larger Erecting Shop-South Eveleigh) 2023 – published LW 9 June 2023.
Willoughby Local Environmental Plan 2012 (Amendment No 33) – published LW 9 June 2023.
Sydney Local Environmental Plan Amendment (Precincts) 2023 – published LW 8 June 2023.
Bills assented to
First Home Buyer Legislation Amendment Act 2023 No 4 – assented to 08 June 2023.
Freeze on Rent and Rate Increases Bill 2023 20/06/2023.