Residential Focus: In the Media, In practice and courts, Publications, Cases and Legislation – Landlord & Tenant – Leases

In the media

Couple hand building hemp house in Victoria in pursuit
of tranquillity and cheaper power bills

Neil and Carol Preston are hand building their dream home
from “hempcrete”, an eco-friendly alternative to bricks
and mortar. The Prestons were drawn to hemp after learning about
its versatility as a construction material, with reports that it
was hypoallergenic, fire resistant, sound insulating, and had a
negative carbon footprint. Hempcrete’s benefits have led to
widespread adoption throughout the world, but in Australia
proponents estimate it has only been used in about 300 residential
dwellings (14 April 2024).  Read more 
here.

Sales of new homes weak for the start of 2024

The Housing Industry Association (HIA) New Home Sales
report is a monthly survey of the largest volume home builders in
the five largest states and is a leading indicator of future
detached home construction. In response to the survey, HIA Senior
Economist, Tom Devitt states that “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″
(16 April 2024).  Read more 
here.

New home commencements in 2023 were the lowest since
2012

The ABS this week released its building activity data for
the December Quarter 2023. This data provides estimates of the
value of building work and number of dwellings commenced, completed
and under construction across Australia and its states and
territories. HIA Chief Economist, Tim Reardon comments on how
“there were only 163,836 new homes that commenced construction
in 2023, the lowest volume of starts in over a decade, and far from
the 240,000 required each year to meet the Australian
government’s target of 1.2 million new homes over the next five
years” (12 April 2024).  Read more 
here.

Apartment construction in NSW collapses under tax
burden

HIA Chief Economist, Tim Reardon explores how “the
number of units commencing construction in NSW has fallen by 50 per
cent” because of “the introduction of additional taxes in
2017” (12 April 2024).  Read more 
here.

Cut to apprentice incentives is a cut to housing

HIA Managing Director, Jocelyn Martin discusses how
“at a time when builders are facing so much adversity, it is
imperative that the Australian Government maintain incentives for
tradespeople employing and retaining apprentices” (8 April
2024).  Read more 
here.

Major planning changes coming into effect to deliver the
homes NSW needs

The NSW Government’s Transport Oriented Development
planning reforms are estimated to deliver over 170,000 more
well-located, well-designed and well-built homes throughout the
Sydney, the Illawarra, Hunter and Central Coast begin this month.
In December last year the government announced the Transport
Oriented Development State Environmental Planning Policy (TOD SEPP)
which identified 31 stations across 13 local government areas
around which new housing is to be located within 400m. Working with
the Department of Planning Housing and Infrastructure (DPHI), 12 of
the 13 local government areas have engaged with the DPHI to develop
housing plans that deliver greater or equal housing numbers than
would be required by the original TOD SEPP (12 April 2024).
 Read more 
here.

First land release to create new jobs and homes in
Bradfield City Centre

A landmark opportunity to partner with the NSW Government
to deliver new homes and jobs at Bradfield City Centre has today
been announced by Minister for Planning and Public Spaces, Paul
Scully. This is a true mixed-use site that includes provision for
1,000 new homes, as well as commercial childcare, hotel, retail,
medical spaces and public domain. Set across 4.8-hectares, there
are over 200,000 square metres of gross floor area development
potential. The Expression of Interest (EOI) builds on extensive
engagement and feedback from industry about the exciting
opportunity to partner with the NSW Government on the flagship
precinct development in Sydney’s newest city (11 April 2024).
 Read more 
here.

$62.5 million to accelerate infrastructure in growing
areas

The NSW Government is set to turbocharge housing-related
infrastructure in key growth areas across the state with a $62.5
million funding boost. The State Voluntary Planning Agreement
(SVPA) program, established in 2010 under the then NSW Labor
Government, uses developer contributions to deliver state and
regional infrastructure in growing areas. The latest round of the
program will support projects in 12 local government areas across
the Lower Hunter, Illawarra, North West and South West Growth
Areas, Wollondilly and the Central Coast (4 April 2024).  Read
more 
here.

In practice and courts

Submission to the National Adaption Plan – Issues
Paper

The HIA made a recent submission to the Senate Select
Committee on Australia’s Disaster Resilience that focused on
Australia’s preparedness, response and recovery workforce
models, as well as alternative models to disaster recovery.
HIA’s submissions on the Issues Paper has drawn from many
aspects to that Inquiry as our comments and recommendations on this
topic have many central and connected themes. In their submission
we have put forward number of recommendations that should be
considered in the further evolution of a National Adaption Plan as
it relates to housing and residential buildings (11 April 2024).
Read more 
here.

Housing Energy Efficiency Calculator

The Australian Building Codes Board (ABCB) has developed a
calculator to assist practitioners in using the Deemed-to-Satisfy
(DTS) elemental provisions for energy efficiency in Section 13 of
the Housing Provisions. The overall goal of the Housing energy
efficiency calculator is to help Australians build homes which are
more comfortable and use less energy (2 April 2024). Read more and
access the tool 
here.

Changes to the regulation of industrial chemicals

The NSW Government has made changes to the Protection of
the Environment Operations Act 1997 (POEO Act) to strengthen the
regulation of industrial chemicals and align NSW with new national
standards for industrial chemical environmental risk management.
The changes have been made under the Environmental Legislation
Amendment (Hazardous Chemicals) Act 2024 and commenced on 25 March
2024 (15 April 2024). Read more 
here.

Publications

New report highlights role of construction industry in
net zero push

The Australian Constructors Association (ACA) has released
a crucial 
report emphasising the pivotal role of decarbonising the
construction industry in realising Australia’s net zero
ambition. Jon Davies, CEO of the ACA, highlighted that construction
is a ‘hard to abate’ sector and while electrification is
the preferred decarbonisation pathway, technology constraints mean
this will not be available in the short to medium term. Read
more 
here.

Deloitte and Autodesk to unveil new industry
report

Next week, Deloitte and Autodesk are set to unveil the
latest insights from the 2024 State of Digital Adoption in
Construction Report (10 April 2024). Read more 
here.

Lifecycle of the NCC

The ABCB has published an infographic showing the
lifecycle of the National Construction Code (NCC), which is updated
every 3 years. Read more 
here.

Building Approvals, Australia – ABS Latest
Release

This report provides the number of dwelling units and
value of buildings approved. The February 2024 period estimated
that total dwellings approved fell 1.9%, to 12,520 (4 April 2024).
Read more 
here.

Building Activity, Australia – ABS Latest
Release

This report provides estimates of value of building work
and number of dwellings commenced, completed, under construction
and in the pipeline. Data shows that total dwelling commencements
rose 1.3% to 38,397 dwellings. Read more 
here.

Cases

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.

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).

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.

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).

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).

Baranowski
v Alan Walker t/as Stroud Plumbing and Gas [2024]
NSWCATAP 50

APPEAL – whether denial of procedural fairness –
whether decision against the weight of evidence – appeal
allowed in part.

Civil and Administrative Tribunal Act 2013 (NSW); Home Building Act
1989 (NSW).

Aboukalam
v Commissioner for Fair Trading [2024] NSWCATOD
39

Administrative Law – plumber – refusal to grant
tradespersons certificate – fit and proper person.

Civil and Administrative Tribunal Act 2013; Administrative
Decisions Review Act 1997; Home Building Act 1989; Home Building
Regulation 2014; Corporations Act 2001 (Cth).

The Owners – Strata Plan No 38308 v
Gelder [2024] NSWCATAP 61

COSTS – appeals – whether the Tribunal erred in not
finding special circumstances and ordering costs after the
Respondent, in substance, consented to the relief sought by the
Appellant, the Applicant below – failure to consent to the
Appellant’s proceedings earlier was not unreasonable –
the Tribunal did not err in not finding special circumstances and
not awarding costs in favour of the Appellant – whether the
order of the Tribunal directing the Appellant to exempt the
Respondent from any costs imposition relating to the Tribunal’s
proceedings was within power and the jurisdiction of the Tribunal
to make.

Civil and Administrative Tribunal Act 2013 (NSW); Strata Schemes
Management Act 2015 (NSW).

Legislation

Statutory Instruments

Electricity
Infrastructure Investment Amendment (Consumer Trustee and
Infrastructure Planner) Regulation 2024 (2024 No 96)
– Published LW 5 April 2024

Environmental
Planning and Assessment Amendment (Schools) Regulation
2024 (2024 No 97) – Published LW 5 April 2024

Inclosed
Lands Protection Amendment Regulation 2024 (2024 No 118)
– Published LW 12 April 2024

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change in law and is not intended to be relied upon as a substitute
for legal or other advice that may be relevant to the reader’s
specific circumstances. If you have found this publication of
interest and would like to know more or wish to obtain legal advice
relevant to your circumstances please contact one of the named
individuals listed.