Residential focus: In the media, in practice and court, publications, cases and legislation

In the media

NSW Fair Trading and the Australian Border Force bring the hammer down on the home building industry
NSW Fair Trading, alongside Australian Border Force (ABF), has completed a highly coordinated and unannounced one-day operation targeting illegal practices on residential building projects. Several groups, made up of officers from both agencies, visited 26 North-West Sydney construction sites as part of 'Operation Hammer'. This is part of Fair Trading's ongoing investigation of unlawful non-citizens working in the NSW home building industry (23 October 2023). Read more here.

Is the sea of dark roofs raising the heat in Australia's new suburbs?
While darker roofing has a role in raising the energy efficiency rating of a home, the collective mass is enough to turn a 40 degree Celsius summer's day into a neighbourhood 45C swelter. Architectural scientist Mahsan Sadeghi from the CSIRO's energy business unit says high-density housing is amplifying adverse climatic effects on a city-wide scale with "the prevalence of dark construction materials ha[ving] a substantial impact on the ambient temperature within these urban environments". In contrast, cool roofs can decrease the peak ambient temperate from between 1.1 to 1.4C (21 October 2023). Read more here.

Refugee women learn construction skills at TAFE NSW to forge new careers and lives
In August 2023, there were 162,470 women employed in the construction industry across Australia, making up 12.4 per cent of the workforce, according to Master Builders Australia. There are also 11,000 migrant and refugee women living in Newcastle and the Central Coast. Professor Egbelakin of the University of Newcastle has teamed up with TAFE NSW to launch a training program to help local migrant and refugee women enter the workforce and break into the construction industry and gain a Certificate II in Construction (18 October 2023). Read more here.

Sydney developer Jean Nassif drops appeal against 10-year building licence suspension
Embattled Sydney property developer Jean Nassif has withdrawn a legal challenge against a decision to suspend his building licence for a decade. In December, NSW Fair Trading suspended Mr Nassif's building licence for 10 years and permanently revoked his company Toplace's licence, after finding them guilty of improper conduct. The bans were imposed following an investigation by Fair Trading, which alleged it had found more than 40 defects in residential developments constructed by Toplace (16 October 2023). Read more here.

The National Housing Conference has wrapped. Here is a summary of the possible solutions
The three-day National Housing Conference in Brisbane ended with five possible solutions to find a way forward, including fast-tracking prefabricated home schemes and getting super funds to build 'rent-to-buy' high rises (13 October 2023). Read more here.

In practice and court

AAT Bulletin Issue No. 21/2023
The AAT Bulletin is a fortnightly publication containing information about recently published decisions and appeals against decisions in the AAT's General, Freedom of Information, National Disability Insurance Scheme, Security, Small Business Taxation, Taxation & Commercial and Veterans' Appeals Divisions (23 October 2023). Read more here.

Strata Legislation Amendment Bill 2023
The Strata Legislation Amendment Bill was passed in the Lower House on Thursday, 19 October 2023. This Bill seeks to amend the Strata Schemes Development Act 2015 and the Strata Schemes Management Act 2015. It will also make amendments to the Community Land Development Act 2021, the Community Land Management Act 2021 and regulations made under each once passed through both Houses (19 October 2023). View the Bill and Explanatory Note here.

Publications

Granny Flat Report October 2023 following national housing crisis summit
Following the national housing crisis summit, new analysis by Archistar, Blackfort and CoreLogic have found more than 650,000 residential properties in Australia's three biggest cities with the potential to build granny flats. The Granny Flat Report 2023 concludes that there is untapped potential to boost housing supply (October 2023). Read media article here. Read the report here.

National Construction Code (NCC) – Thermal bridging in residential buildings resource
The NCC has published a Therman bridging in residential buildings resource which provides information about Performance Requirements and Deemed-To-Satisfy solutions regarding thermal bridging in Class 1 buildings (houses) and Class 2 buildings (apartment and common areas). It contains links to case studies showing the impact of thermal bridging in various types of commercial buildings using different materials (12 October 2023). Read more here.

Cases

Ikona Developments Pty Ltd v Tierney [2023] NSWCATAP 281
APPEALS – questions of law – procedural fairness.
APPEALS – measure of damages – fresh evidence.
Civil and Administrative Tribunal Act 2013 (NSW), s 36, 80, 81; Home Building Act 1989 (NSW), ss 18B, 48A.

Construction Development Management Services Pty Ltd v City of Sydney [2023] NSWLEC 1020
DEVELOPMENT APPLICATION – residential apartment development – residential flat building in SP5 Metropolitan zone – whether apartment design guide is mandatory – whether proposed development exhibits design excellence – Apartment Design Guide – whether public domain interface acceptable.
Architects Act 2003; Environmental Planning and Assessment Act 1979, ss 4.16, 8.7; Environmental Planning and Assessment Regulation 2021, ss 3, 29; Heritage Act 1977, s 140; State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004; State Environmental Planning Policy (Housing) 2021; State Environmental Planning Policy (Sustainable Buildings) 2022, ss 4.1, 4.2; State Environmental Planning Policy No. 65 – Design Quality of Residential Apartment Development, cll 28, 30, Sch 1; Sydney Local Environmental Plan 2012, cll 4.3, 4.4, 5.10, 5.21, 6.4, 6.16, 6.21, 6.21A, 6.21B, 6.21C, 6.21D, 6.21E, 7.13, 7.14, Sch 5.

In the matter of The Gosford Pty Ltd (Receivers and Managers Appointed) [2023] NSWSC 1232
CORPORATIONS – receivers and managers – company entered into contracts with numerous purchasers for sale off the plan of lots in a mixed residential and commercial development being undertaken by the company – purchasers paid deposits to stakeholder – secured creditor appointed receiver and manager to company's assets, including the land – appointor later sold the partly-developed land as mortgagee in possession – company thereby became unable to complete contracts with purchasers – direction that receiver is justified in causing the company to direct the stakeholder to release the deposits to the purchasers.
Conveyancing Act 1919 (NSW), s 66ZT; Corporations Act 2001 (Cth), s 424; Property and Stock Agents Act 2002 (NSW), s 86.

Jiang v Sui [2023] NSWCATCD 127
LAND LAW – Strata Title – By-laws – noise – installation of floating floor – interference with the peaceful enjoyment of the owner or occupier of another lot – amendment of by-law after installation of floating floor – By-law as amended requiring compliance with particular standard – whether by-law as amended applies to pre-existing floor.
Strata Schemes Management Act 2015 (NSW).

Pearce v Commissioner for Fair Trading [2023] NSWCATOD 149
ADMINISTRATIVE REVIEW – disciplinary action – licencing – criminal offences – failure to disclose all past offence – assault on neighbour while performing building works – whether guilty of improper conduct - whether a fit and proper person.
Administrative Decisions Review Act 1997; Civil and Administrative Tribunal Act 2013; Home Building Act 1989.

Stewart v Scott [2023] NSWCATAP 279
ADMINISTRATIVE LAW – particular administrative bodies – NSW Civil and Administrative Tribunal – renewal of proceedings in the Consumer and Commercial Division – Civil and Administrative Tribunal Act 2013 (NSW) Schedule 4 clause 8 – restriction on renewal application if the order not complied with "is or has been the subject of an internal appeal" – restriction does not apply where order not varied on internal appeal.
Civil and Administrative Tribunal Act 2013 (NSW) Sch 4 cl 8(5); Civil and Administrative Tribunal Amendment Act 2013 (NSW); Civil and Administrative Tribunal Rules 2014, (NSW); Consumer Trader and Tenancy Tribunal Act 2001 (NSW); Fair Trading Act 1987 (NSW); Home Building Act 1989 (NSW); Strata Schemes Management Act 2015 (NSW).

Legislation

Assented to
Environmental Planning and Assessment Amendment (Housing and Productivity Contributions) Act 2023 No 10 – commenced 1 October 2023

Regulations and miscellaneous instruments
Border Fence Maintenance Amendment Regulation 2023 (SI 563) – LW 13 October 2023
Conveyancing (General) Amendment (Miscellaneous) Regulation 2023 (2023-564) – LW 13 October 2023
Environmental Planning and Assessment Legislation Amendment (Housing and Productivity Contributions) Regulation 2023 (2023-547) – LW 29 September 2023
Protection of the Environment Operations Legislation Amendment (Miscellaneous) Regulation 2023 (2023-51) – LW 17 February 2023

Bills introduced by Government
Building Legislation Amendment Bill 2023 – introduced LC 12 October 2023
Strata Legislation Amendment Bill 2023 – introduced LC 12 October 2023
Climate Change (Net Zero Future) Bill 2023 – introduced LC 12 October 2023
Strata Legislation Amendment Bill 2023 – introduced LC 12 October 2023

Passed by both Houses
Work Health and Safety Amendment Bill 2023 – passed 12 October 2023

This publication does not deal with every important topic or 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.