This is Mills Oakley’s Quick Fix Building Law update for October 2020

What is it?

The Quick Fix is a collection of brief updates to make you aware of new construction related legislation and bills as they become part of our working lives.

New Acts and Regulations associated with building and construction

Residential Apartment Buildings (Compliance and Enforcement Powers) Regulation 2020

• Fines for failures to notify expected completion dates ahead of applying for an Occupation Certificate

As part of the suite of new laws available to NSW Building Commissioner David Chandler to assist in attaining his goal of restoring public confidence in the NSW building industry, the new Residential Apartment Buildings (Compliance and Enforcement Powers) Regulation 2020  will apply to Class 2 buildings – typically multi-storey, multi-unit apartment buildings. These new regulations address new penalty notices and fines now payable under the Residential Apartment Buildings (Compliance and Enforcement Powers) Act 2020. Developers can now be fined between $3,000 and $11,000 for each failure to lodge an expected completion notice ahead of making an application for an occupation certificate for a building (s.7); also, fines between $1,500 and $5,000 now exist for a failure to lodge an expected completion amendment notice.

Building and Construction Industry Security of Payment Regulation 2020

• Retention money ledgers, supporting statement changes

The ever evolving system of trying to deliver a more secure regime for contractor and subcontractor payments took another step in NSW on 1 September 2020. Following the amendments to the Act in October 2019, the much anticipated Building and Construction Industry Security of Payment Regulation 2020 has commenced. Changes include removing the annual DFT reporting requirements, a requirement that retention monies ledger be kept by Contractors in respect of their subcontractors. These new regulations also deal changes to the supporting statements regime, as well as the eligibility prerequisites for adjudicators together with a required continuing professional development (CPD) regime for adjudicators including three compulsory topics being: legal principles and concepts; practice and procedure; and, ethics.

Home Building Act 1989 No 147

• New ‘Relevant Professional’ defence for breaches of statutory warranty

A not unreasonable consequence of the new Design and Building Practitioners Act 2020 gaining assent has made it possible for parties in a dispute concerning statutory warranties under the Home Building Act 1989 (NSW) to better know where they stand in respect of deficiencies occurring during construction. This new Act has seen a corresponding amendment made to the Home Building Act 1989 (NSW) (HBA) with an inclusion occurring at s.18F in respect of who constitutes a ‘relevant professional’ upon whom a defendant may have relied upon or received instructions from when building. The amendments to  section 18F of the HBA now cross-reference the recently commenced  Design and Building Practitioners Act 2020. In the instruction chain, the HBA now defines the meaning of who is a ‘relevant professional’ to be in lock-step with the new Act to avoid inconsistency in identifying those with responsibility under the instruction chain.

Environmental Planning and Assessment Regulation 2000

Environmental Planning and Assessment Amendment (Occupation Certificates) Regulation 2020

• Occupation certificates for DAs valued at $10m or more

Accredited Certifiers in NSW are now required to take more into account before being satisfied that an Occupation Certificate can be issued. The Environmental Planning and Assessment Amendment (Occupation Certificates) Regulation 2020  outlines at cl.149(2AA) and cl.154F what further documents will now be required to accompany DAs of $10 million or more, together with details surrounding the restriction on the issue of certificates unless contributions are paid. Among the new documents now required to be received by a certifier before the issuance of an Occupation Certificate are council certifications that a section 7.11 contribution or section 7.12 levy has been paid by the developer.

New Bills associated with building and construction

Dividing Fences Amendment Bill 2020

The effect of the proposed amendment is to apply the principal Act to the Crown, councils, roads authorities and Water NSW, so that they will be liable to pay for dividing fencing work. Irrigation corporations and Aboriginal Land Councils will remain exempt from the principal Act.

This Bill has received its 2^nd Reading speech in the Legislative Council and its earliest estimated enactment will be mid to late October 2020.

Community Land Development Bill 2020 and the Community Land Management Bill 2020

The object of this Bill is to re-enact and update legislation with respect to the management of community, precinct and neighbourhood subdivision schemes and to align the legislation with legislation applying to the management of strata title schemes.

These Bills are awaiting their 2^nd Reading debates and their earliest estimated enactments will be mid to late October 2020.

Strata Schemes Management Amendment (Sustainability Infrastructure) Bill 2020

The objects of this Bill are as follows— (a) to facilitate the installation of sustainability infrastructure in strata schemes, (b) to prevent records of secret ballots from being disclosed as part of strata records, (c) to remove a duplicated requirement to give a tenant a copy of the by-laws for a strata scheme, (d) to make an owners corporation responsible for the service of notices about applications to the Civil and Administrative Tribunal (the Tribunal) under the Strata Schemes Management Act 2015 (the principal Act), (e) to enable applications to the Tribunal for a civil penalty against a person who has contravened an order of the Tribunal, (f) to enable a person who owns more than 1 lot in a strata scheme to nominate 1 individual to act as a proxy for all the lots, (g) to provide that a nomination of a proxy for a meeting is not rendered invalid if the meeting is adjourned.

The Bill is presently awaiting consideration of Legislative Council amendments and its earliest enactment is estimated to be mid-October 2020.

If you’d like more expansive advice or wish to discuss any of the areas touched on, feel free to get in touch.