June 24, 2021

tacere

Beauty Made Perfect

Inside track: Construction & Infrastructure

In the media

Consultation open on building surveyor registration discussion paper A discussion paper in response to the Shergold Weir Building Confidence Report (BCR) is now open for public comment. Recommendation 4 of the BCR suggested action on career pathways for building surveyors (27 May 2021). More…

HIA: A record year of housebuilding is underway A record number of detached housing starts will occur in the 12 months to September 2021 with more than 146,000 detached houses commencing construction. This is more than 20 per cent higher than the peak of the previous boom in 2018. This forecast is contained in HIA’s economic and industry Outlook Report. More…

IEA: Net zero by 2050: A roadmap for the global energy sector The International Energy Agency has launched Net Zero by 2050: A Roadmap for the Global Energy Sector. It identifies key pillars of decarbonisation, including energy efficiency, electrification, and renewables; and addresses sectoral pathways to net zero emissions by 2050, including the buildings sector (19 May 2021). More…

Industry-led roadmap introduces actions for safe and quality insulation installations A broad coalition of insulation, building and energy efficiency organisations has released a joint Roadmap for quality control and safety in insulation installation. The roadmap sets out a series of actions to ensure that insulation is installed following best practice processes for quality control and safety (18 May 2021). More…

New South Wales

Sydney’s new buildings soar towards net-zero New buildings will be more energy-efficient, use more renewable energy and support the transition to net-zero emissions under an Australia-first plan to include energy targets in development applications (25 May 2021). More…

Surge in insurance premiums to push up renovation costs for apartment owners A hike of up to 50 per cent in premiums for building work on apartment blocks, terraces and townhouses will start to be passed onto owners from late July (22 May 2021). More…

Safe cladding products endorsed by expert panel NSW Minister for Better Regulation Kevin Anderson has announced a major milestone for Project Remediate with the release of an independent report outlining four safe and non-flammable product categories that represent the first tranche to replace high-risk cladding (19 May 2021). More…

Queensland

Secret government report shows Bulimba to Teneriffe bridge is feasible The 2016 report for the transport department shows a pedestrian and bike bridge that opens to let boats through is viable and would be used by 3600 people daily (27 May 2021). More…

Adani loses billions of litres of water in Federal Court decision It comes as Queensland authorities have confirmed two investigations into alleged environmental concerns at the Carmichael coal mine (25 May 2021). More…

Green light given to construct Queensland pumped hydro plant Australia’s first pumped hydro energy storage (PHES) system in 37 years is set to begin construction as Genex Power reaches financial close on its Kidston Stage 2 PHES project (20 May 2021). More…

$94 million luxury development proposed for northern Gold Coast to include marina, superyacht berths The development is the first at the Southport Spit site in decades and will adhere to a contentious planning scheme height limit (18 May 2021). More…

Hybrid Power Project to create jobs in Mount Isa The Queensland government have proposed a Hybrid Power Project for the North West, which will generate new technology construction jobs in the Mount Isa region (17 May 2021). More…

Victoria

Redevelopment of Queenscliff Ferry Terminal in Victoria propelling forward The $15.9 million redevelopment of the Queenscliff Ferry Terminal is a step closer with the tender awarded to Kane Constructions Pty Ltd to construct the new building (26 May 2021). More…

Taking Marvel Stadium to the next level Minister for Tourism, Sport and Major Events Martin Pakula announced John Holland Group will construct the $225 million project, funded by the Victorian Government as part of its State-AFL Funding and Commitment Deed. Construction is set to start later this year and will be completed in late-2023 (25 May 2021). More…

Planning to start on Central Pier Development Victoria will commence planning for extensive stakeholder and community consultation on the redevelopment of Central Pier, following the Victoria Government’s allocation of $3 million announced in the State Budget (21 May 2021). More…

Stockland estate the scene of largest national recycled road Stockland’s Minta estate, located in Berwick, south-east of Melbourne, will soon be home to Australia’s largest environmentally friendly road project, spanning more than two kilometres of roadway (21 May 2021). More…

Consortium to partner with Homes Victoria on $500M housing project Homes Victoria has nominated the Building Communities consortium as the preferred proponent to redevelop three housing precincts in metropolitan Melbourne, delivering much-needed new homes (17 May 2021). More…

Practice and courts

Infrastructure Australia reminder: A new approach to the Infrastructure Priority List From April 2021, only proposals that are yet to receive funding from the Australian Government are considered for inclusion on the Priority List. This change is designed to ensure that the Priority List provides a clearly defined pipeline of investment-ready proposals. All business case evaluation summaries can be found on the Infrastructure Australia website.

ABCB: Improvements to the code’s structure and format will be implemented for NCC 2022 To guide users through the changes, the ABCB has developed a range of supporting resources that will be released in stages leading up to the publication of the NCC 2022 Public Comment Draft on 10 May 2021. The first stage of articles and resources are being released here.

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 here. If you have any questions regarding the delayed adoption of NCC 2022, please submit an online enquiry.

Comcare Consultation: Proposed change to plant registration – removal of a condition Comcare is considering removing its imposed condition on all plant registrations that “a registration holder must notify Comcare annually of any maintenance, repair, inspection or testing of an item of plant”. Plant includes items such as cranes, machinery, vehicles, forklifts, lifts, boilers, gas cylinders, Comcare invites submissions on the proposed removal of the condition until 24 June 2021. More…

New South Wales

Have your say on changes to how building design and construction is regulated in NSW 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 (May 2021). 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.

Queensland

QBCC reminders

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

The 2021-22 Victorian State Budget Published: 20 May 2021 – here is a snapshot of some of the budget highlights for DJPR: $179.4 million over three years to support stage one of the Fishermans Bend Innovation Precinct development. $50 million for the Growing Suburbs Fund to continue to deliver critical local infrastructure projects and community facilities. $35.7 million to ensure Victoria’s minerals, quarry and gas sectors continue to grow, by supporting timely regulatory approvals and better identification of future resources. More…

Consumer Affairs Victoria: Engineers have their say on proposed registration fees – news alert The Victorian Government is inviting feedback before new fees are set for the registration and endorsement of professional engineers under new laws starting on 1 July 2021.The proposed Fees Regulations and RIS and are now available for public consultation – visit Engage Victoria. Comments and submissions closed on 3 May 2021. For more information, view Professional engineers. 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

Housman v Camuglia [2021] NSWCA 106CONTRACT – damages – claim for consequential loss – construction works caused damage to neighbour’s land – claim for lost rent – trial judge found apartments unlettable in light of damage to stairway – finding based on evidence of landlord and letting agent – no reference in reasons to unchallenged engineering evidence that stairway safe – whether reasons of trial judge inadequate – inutility of inadequate reasons as a ground where appeal is by way of rehearing – whether trial judge misused evidence admitted on limited basis – no error made out APPEALS – requirement of leave – whether appellants required leave for separate challenge to costs order based on rejection of Calderbank offer in circumstances where there was an appeal as of right – construction of “an appeal from a judgment or order as to costs only” in District Court Act 1973 (NSW), s 127(2)(b) – history of s 127(2)(b) and s 101(2)(c) of Supreme Court Act 1970 (NSW) – history of United Kingdom antecedents – appellants entitled to challenge special costs order as of right COSTS – Calderbank letter – whether error in finding that appellants had unreasonably rejected offer – significance of factual error in letter – significance of offer being rejected before service of all evidence – no error made out.

Valmont Interiors Pty Ltd v Giorgio Armani Australia Pty Ltd (No 2) [2021] NSWCA 93BUILDING AND CONSTRUCTION – contract – damages – defects – whether the contractor was responsible for defects in materials supplied by a third party – where the relevant contractual warranty was confined to “works required to be performed by the contractor” BUILDING AND CONSTRUCTION – contract – termination – quantum meruit – whether the contract operated to generate release and waiver of subsequent claims for payment by the contractor – where the contractor had suffered irreversible detriment by incurring liability to pay for materials prior to the principal’s insistence upon strict adherence to the contract BUILDING AND CONSTRUCTION – contract – variation – implied promise to pay – whether the works constituted “variations” as defined in the contract – where the principal requested that the contractor supply materials that it had originally insisted upon supplying itself – where written approval was sought by the contractor in respect of all other variation works CONTRACTS – breach of contract – consequences of breach – right to damages – estoppel – promissory estoppel – whether it was unconscionable for the principal to resist payment for the performance of certain works – where the principal was positively encouraging the contractor to complete outstanding works – where such encouragement followed the principal’s purported departure from the assumption that it had approved these works EQUITY – estoppel – promissory estoppel – general principles and maxims – equity will not permit detriment to be visited upon or remain with the party who has not been sufficiently clearly disabused of the counter-party’s intended departure from the relevant assumption inducing reliance ESTOPPEL – promissory estoppel – detrimental reliance – whether the principal discharged its duty to inform the contractor labouring under an assumption that the basis for that assumption had “materially changed” – where such material change must be communicated in sufficiently clear terms – where the relevant communication did not expressly refer to or address the topic of the assumption – where the principal was positively encouraging the contractor to complete outstanding works in respect of materials that the principal knew it had originally undertaken to supply itself.

Queensland

Ausipile Pty Ltd v Bothar Boring and Tunnelling (Australia) Pty Ltd [2021] QSC 122PROCEDURES – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – GENERAL RULE: COSTS FOLLOW EVENT – PARTIAL SUCCESS – where the respondent successfully opposed an application for judgment under the Building Industry Fairness (Security of Payment) Act 2017 (Qld) – where the respondent succeeded on one of three alternative defences – where considerable time and resources were expended arguing about the two unsuccessful grounds – how costs should be apportioned PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – OFFERS TO COMPROMISE, PAYMENTS INTO COURT AND SETTLEMENTS – INFORMAL OFFERS AND CALDERBANK LETTERS – UNREASONABLE REFUSAL OF OFFER – where the applicant rejected the respondent’s Calderbank offer – where the offer was open for five business days and was made five business days before the hearing – where the applicant rejected the offer two days before it expired – whether the applicant had a reasonable opportunity to consider the offer – whether costs should be awarded on an indemnity basis from the date of the offer. Uniform Civil Procedure Rules 1999 Qld r 681, r 684.

RHG Construction Fitout and Maintenance Pty Ltd v Kangaroo Point Developments MP Property Pty Ltd & Ors [2021] QCA 117CONTRACTS – BUILDING, ENGINEERING AND RELATED CONTRACTS – REMUNERATION – RECOVERY ON QUANTUM MERUIT – CERTIFICATES – STATUTORY REGULATION OF ENTITLEMENT TO AND RECOVERY OF PROGRESS PAYMENTS – ADJUDICATION OF PAYMENT CLAIMS – where the appellant was a contractor builder who served a payment claim for a progress payment upon the first respondent principal under a standard form “AS 4902-2000” Contract – where the appellant also submitted a payment claim to the Superintendent under the Contract – where the Superintendent issued a payment schedule and certificate evidencing their assessment of the moneys due to the appellant and first respondent – where the first respondent’s solicitors disputed the Superintendent’s issued payment schedule as a valid “payment schedule” under the Building Industry Fairness (Security of Payment) Act 2017 (the Act) – where the first respondent’s solicitors issued a second payment schedule outlining that they did not owe any moneys to the appellant – where the appellant elected to begin an adjudication under the Act – where the adjudicator accepted that the appellant rightly identified the Superintendent’s payment schedule as a valid payment schedule under s 69 of the Act and concluded that the first respondent owed moneys to the appellant with interest – where the first respondent originated proceedings in the Supreme Court which declared the adjudication decision void on the basis that it lacked jurisdiction as the appellant did not identify the relevant payment schedule as required by s 79(2)(c) of the Act – whether the appellant properly identified the Superintendent’s payment schedule instead of the first respondent’s solicitors’ payment schedule as the relevant “payment schedule” for adjudication under the Act – whether the second payment schedule issued by the first respondent’s solicitors was served within the statutory delivery period under s 76 of the Act Building and Construction Industry Payments Act (repealed) 2004 Qld Building Industry Fairness (Security of Payment) Act 2017 Qld s 69, s 75, s 76, s 78, s 79, s 200.