Australia: Inside Track: Construction & Infrastructure - In the media, Practice and courts, and Cases

In the media

Australian PCI: Construction boom interrupted by COVID lockdowns in July
The Australian Industry Group/Housing Industry Association Australian Performance of Construction Index (Australian PCI®) fell by a further 6.8 points to 48.7 in July, recording the first fall into contraction since September 2020 (readings below 50 indicate contraction in activity, with lower results indicating a stronger pace of contraction) (04 August 2021).  More...

Wall of capital knocking on the door of Aussie infrastructure
Australia is still the destination of choice for infrastructure investors, but a lack of investment opportunities, the cost and complexity of bidding, and policy instability risk Australia losing out on capital, according to a new report from Infrastructure Partnerships Australia (02 August 2021).  More...

Update for the 2021 Infrastructure Priority List
Infrastructure Australia has streamlined the Infrastructure Priority List to provide clearer investment advice to governments, industry and the community, as part of its mid-year update to the 2021 Infrastructure Priority List. (29 July 2021).  More...

Skilled trades remain in high demand across all regions
The HIA Trades Report was released. The HIA Trades Availability Index improved marginally from -0.55 to -0.53 in the June 2021 quarter indicating that the industry is experiencing one of the most significant skills shortages of the past 20 years (28 July 2021).  More...

New South Wales

Three peak bodies release landmark building design guide
Consult Australia, Engineers Australia and the Australian Institute of Architects have jointly released a landmark guide for design practitioners and engineers - in the wake of major NSW legislative and regulatory reforms to improve building quality and safety (05 August 2021).  More...

Managing contractor appointed to oversee removal of flammable cladding
Minister for Better Regulation Kevin Anderson announced the appointment of Hansen Yuncken as Managing Contractor of NSW's cladding remediation program. The Managing Contractor is fully funded as part of the $139m investment by the NSW Government to provide complete program management for each affected building (03 August 2021).  More...

Builders say Sydney suburban lockdowns halting $6b worth of projects
Building sites that depend on workers from western Sydney remain unable to open, despite the end of a government ban on some construction (03 August 2021).  More...

Ground-breaking bond scheme available online
The NSW Government is creating greater protection for consumers from defective building work by moving the Strata Building Bond and Inspections Scheme online, simplifying bond management and enhancing transparency (02 August 2021).  More...

Port Botany Rail Line Duplication and Cabramatta Loop major contracts awarded
The ARTC has awarded two major contracts for the design and construction of the $400 million Port Botany Rail Line Duplication and Cabramatta Loop project. John Holland is the successful contractor to design and construct the Botany Rail Duplication, and Fulton Hogan is the successful contractor for the Cabramatta Loop (02 August 2021).  More...

HIA: Lockdown changes for home building important first step
"A roadmap to re-opening home building and renovation sites is an important first step as Sydney transitions back to full capacity. The journey ahead however remains extremely difficult for builders, tradies, manufacturers, suppliers and their customers (28 July 2021).  More...

AIA, Consult Australia & Engineers Australia: Guide for design practitioners and engineers
In the wake of major NSW legislative and regulatory reforms to improve building quality and safety, three peak bodies have released a Guide for design practitioners and engineers to help their members tackle the recent NSW Building Confidence reforms (28 July 2021).  More...

New South Wales Government introduces new mining rehabilitation rules
Mining operators across NSW will be required to show their plans for progressive rehabilitation and to report annually on rehabilitation outcomes, with the NSW Government introducing a series of new reforms (26 July 2021).  More...

Purchasers benefit from developer agreement at the skyview project
The NSW Building Commissioner has lifted the Prohibition Order on the Skyview project after reaching an enforceable undertaking with developer Toplace to provide an ongoing inspection and maintenance program backed by financial guarantees (26 July 2021).  More...

Western Sydney Airport Metro gets green light
The Sydney Metro - Western Sydney Airport project has reached a major milestone with planning approval having been granted by the New South Wales Government and major construction set to commence soon (25 July 2021).  More...

Queensland

Roma Street transformation takes shape
Brisbane's Roma Street precinct is set to become Queensland's chief transport hub, offering easy access to a key Olympics venue, new housing and expanded parklands (04 August 2021).  More...

North Queensland businesses to work on Powerlink transmission project
Queensland's publicly-owned power transmission company is on the hunt for local businesses, who employ locals, to help deliver the state's newest transmission project to supply renewable electricity to North Queensland (03 August 2021).  More...

Townsville Port's $232 million upgrade rocks on
The largest infrastructure project in the Port of Townsville's history has reached a major milestone with the completion of the $232 million Channel Upgrade project's rock wall (29 July 2021).  More...

Time ticking for builders with shortages, delays and cost hikes to detonate before Christmas
Material delays and soaring costs are continuing to tighten their grip on the building and construction industry, with the situation not expected to ease until next year (28 July 2021).  More...

$140 million Ferny Grove Station upgrade kicks off
Another Queensland jobs boost is underway with major construction underway on Ferny Grove's $140 million landmark suburban Transit Oriented Development (27 July 2021).  More...

Lindum Level Crossing upgrade reaches milestone
The Queensland Government's Lindum Level Crossing Precinct upgrade has completed preliminary planning, with work underway on short-term safety upgrades (27 July 2021).  More...

Victoria

Complicated, costly and downright frustrating: Aussies keen to cut emissions with clean energy
The aim of our report was to better understand stories to inform a Victorian Energy and Water Ombudsman review of the various new energy technology regulatory frameworks in Australia. These frameworks have not kept up with the pace of technological change (04 August 2021).  More...

Grants to build more changing places facilities in Victoria
The Victorian Government has announced that applications are now open for the latest round of grants for fully accessible public restrooms. The latest grants round builds on $3.46 million already invested by the State Government to build 33 facilities, including at the MCG, Melbourne Zoo and Hamer Hall. Victoria leads the way nationally, hosting 87 of Australia's 178 Changing Places facilities (04 August 2021).  More...

More than 1,200 parking spaces for Craigieburn commuters
A new 745 space car park has opened at Craigieburn Station, boosting the total number of parking spaces at the station to more than 1,200 and making it easier for commuters to find a car park and catch the train. "The Morrison Government is getting on with delivering infrastructure projects that improve congestion and safety for commuters across Australia, under the Urban Congestion Fund (28 July 2021).  More...

Practice and courts

Master Builders Australia submissions
July 28, 2021 - Master Builders submission to House of Representatives Standing Committee on Infrastructure, Transport and Cities Inquiry into procurement practices for government funded infrastructure.  More...

ABCB: Consultation open: Continuing professional development on the National Construction Code
Recommendation 3 of the Building Confidence Report is that each jurisdiction requires all practitioners to undertake compulsory continuing professional on the National Construction Code. Feedback on the draft model guidance is now sought via a discussion paper. Responses to questions in the discussion paper are invited until 5 September 2021 (26 July 2021).  More...

ABCB NCC 2022 energy efficiency project - rationale and scope
This supporting documents assists in understanding the focus of changes being considered for the 2022 version of the National Construction Code (NCC 2022) in regards to: 1. increasing the stringency of the energy efficiency provisions for residential buildings, and2. developing quantified Performance Requirements and compliance pathways enabling compliance using a whole-of-house approach (03 August 2021).  More...

Adoption of NCC 2022 to be delayed
The delayed adoption will also see adjustments to key dates in the amendment cycle process for NCC 2022 to allow stakeholders time to participate. These adjusted dates include:
May - July 2021: NCC 2022 Public Comment Draft released for public consultation
May 2022: NCC 2022 Preview published at ncc.abcb.gov.au
If you have any questions regarding the delayed adoption of NCC 2022, please submit an online enquiry.

New South Wales

Guide for design practitioners and engineers
Consult Australia, Engineers Australia and the Australian Institute of Architects have joined forces to develop the Guide for design practitioners and engineers to help their members tackle the recent NSW Building Confidence reforms. There are multiple new obligations on design practitioners, engineers and building practitioners throughout the life of a building under the NSW Design and Building Practitioners Act 2020 and the Design and Building Practitioners Regulation 2021.

Infrastructure Grants program opens
To be eligible for funding, applications must meet eligibility conditions including, the project location, the applicant and project benefit, purpose and development status. There is also a requirement for local government applicants to match funding. Applications are open from November 2021: Monday 1 November to Monday 22 November 2021.  More...

Have your say on changes to how building design and construction is regulated in New South Wales
The development of supporting regulations is the next step on delivering on this piece of the Government's building reform agenda, with the scheme commencing on 1 July 2021. In response to your feedback, we've drafted a report that explains the changes that were made to the draft Regulation.  More...

Conflicts of interest - savings and transitional arrangements
Clause 71 of the Regulation introduces savings provisions for certain conflict of interest situations where the certifier was appointed before 1 July 2020 and the work will be completed before 1 July 2022. The provisions relate to council-certified developments and to developments where the certifier gave advice on how to comply with the BCA deemed to satisfy provisions. For all the changes, access the Amendment Regulation here.

New mandatory standards for building rectification
The standard will be reviewed and updated prior to the 1 July 2021 commencement of the Government's game changing building reform agenda underpinned by the Design and Building Practitioners Act 2020.
The first Practice Standard will initially apply to certifiers working on residential apartment buildings, where the majority of problems and complaints have been received. The Practice Standard for registered certifiers is available on the Fair Trading NSW website.

Queensland

Mooloolah River Interchange consultation
For more information on the Mooloolah River Interchange, including how you can have your say, view the planning layout visit the link below. Consultation closes on 27 August 2021.  More...

QBCC reminder: Extension to PI insurance cladding exemption
The Building (Professional Indemnity Insurance) Amendment Regulation 2020 commenced on 18 September 2020, giving effect to the extension of the external cladding exclusion. Now, certifiers can continue to obtain a licence to operate with PI insurance containing exclusions in relation to non-compliant external cladding until 30 June 2022.  More...

Build-to-Rent update - approved projects
The Queensland Government has approved two Brisbane-based affordable housing projects by developers following a Request for Detailed Proposals from shortlisted applicants from the Expression of Interest Phase of the Pilot Project. It is anticipated construction will commence mid-2021 following the finalisation of designs for the projects, with operations expected to commence in 2023.  More...

Victoria

VBA: Revised AS/NZS plumbing standards - transition period
The VBA has applied a transition period for plumbers to familiarise themselves with revised AS/NZS standards, before they need to be applied to plumbing practices on 1 September 2022.  More...

VBA: Fire protection equipment servicing registration/licensing deadline extended
Anyone working on the routine servicing of fire protection equipment must be registered or licensed with the VBA. After 31 July 2021, unregistered or unlicensed practitioners carrying out this work will be subject to VBA enforcement action. Due to COVID-19, the date for registration/licensing was extended from 31 December 2020 to 31 July 2021.  More...

VBA: Carpenters selected for first stage of trades registration
Carpenters will be the first group of trades registered under Victoria's recently developed trades registration framework. Provisional registration and licensing for carpenters is expected to commence in mid-2021. For more information and answers to frequently asked questions, refer to the Engage Victoria website.

Cases

New South Wales

Jabbcorp (NSW) Pty Ltd v Strathfield Golf Club  [2021] NSWCA 154
CONTRACT - construction - design and construct contract - contractor claimed additional payment for works required pursuant to development consent - whether works were "Excluded Works" - significance of definition commencing "Notwithstanding any other clause" - significance of grammatical meaning of clause - clause required to be read as a whole, harmoniously with other provisions in contract.

Victoria

Stephens v Cameron [2021] VSCA 208
BUILDING AND CONSTRUCTION - major domestic building contracts - contract for management of construction of two townhouses - owners contracted with registered builder, who engaged trade contractors - substantial amounts paid to builder for incomplete works - whether contract a 'domestic building contract' for purposes of Domestic Building Contracts Act 1995 - whether implied criterion of 'responsibility' limiting application of Domestic Building Contracts Act to contracts with persons responsible for works - no implied criterion - contract for managing and arranging carrying out of construction of home a 'domestic building contract' - whether applicant not a 'builder' for purposes of Domestic Building Contracts Act because respondents 'owner-builders' for purposes of Building Act 1993 - respondents not 'owner-builders' - applicant treated as builder for statutory building permit and insurance requirements - concept of 'owner-builder' irrelevant to characterisation under Domestic Building Contracts Act - leave to appeal refused - Domestic Building Contracts Act 1995 ss 1, 3-5, 8, 29, 31, 132-3, Building Act 1993 24A, 25E, 135-6, 137B
STATUTORY CONSTRUCTION - whether s 40(2) of Domestic Building Contracts Act creates statutory entitlement to repayment of amounts retained by builder above prescribed progress payment limits - Imerva Corporation Pty Ltd v Kuna  [2017] VSCA 168, considered, Cook's Construction Pty Ltd v SFS 007.298.633 Pty Ltd [2009] QCA 75; (2009) 254 ALR 661, distinguished - no statutory entitlement - whether contravention of s 40(2) founds unjust enrichment claim and forecloses defences - contravention of s 40(2) may be vitiating factor in unjust enrichment claim, but does not foreclose all defences - leave to appeal granted - appeal allowed - Domestic Building Contracts Act ss 3, 13, 40, 132-3
PRACTICE AND PROCEDURE - interest - whether 'free-standing' right to interest in action for moneys had and received - Heydon v NRMA Pty Ltd [No 2] [2001] NSWCA 445; (2001) 53 NSWLR 600, Chow v Yang [2010] SASC 96, Peet Ltd v Richmond [2011] VSCA 343; (2011) 33 VR 465, considered - whether Domestic Building Contracts Act 1995 a 'written instrument' by virtue of which amount liable to be paid - Supreme Court Act 1986 ss 58, 60. WORDS AND PHRASES - 'contract price' - 'domestic building works' - 'domestic building contract' - 'major domestic building contract' - 'builder' - 'owner-builder'- 'written instrument'.

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.