Tension released on ground anchors
In a change that many will welcome, building practitioners who, as part of a regulated design, propose to install a ground anchor under a neighbouring property will no longer be required to provide evidence of a registered easement. Certain other forms of documents evidencing a right are also acceptable (since 1 March 2022).
Last year, the Minister for Better Regulation and Innovation issued the Design and Building Practitioners – Particulars for Regulated Designs Order 2021 (Order) under section 5(3) of the Design and Building Practitioners Act 2020 (NSW) (Act). Schedule 2, clause 3 of the Order required that evidence of a registered easement over a neighbouring property, granting a right of installation for a ground anchor, must be included in a regulated design if any part of the ground anchor is extended onto neighbouring property.
The registration of an easement (whether negotiated or ordered under section 88K of the Conveyancing Act 1919 (NSW)) has many benefits, including that the easement is registered on a landowner’s title of the property, and the easement transfers with the title when the property is sold. However, the requirement of providing evidence of a registered easement created additional challenges for developers and builders. Where the land burdened by the easement had other interested parties, such as lessees or mortgagees, all interested parties must agree to the proposed easement. Even more cumbersome are situations where the easement is sought for burdened land subject to the Stata Schemes Development Act 2015 (NSW), which requires the owners corporation to pass a special resolution before an easement can be granted.
That position has changed under the Design and Building Practitioners Amendment (Miscellaneous) Regulation 2022, which took effect on 1 March 2022. The amendments (among other things) create a suite of provisions as Part 3, Division 3A of the Design and Building Practitioners Regulation 2021 for requirements for building work with ground anchors.
In hand with the new Division 3A, the Order has been repealed and replaced with the Design and Building Practitioners – Particulars for Regulated Designs Order 2022.
The changes introduce flexibility for the method to show that there is legal authority to place ground anchors on neighbouring properties, where any of a licence agreement, a deed or an easement will constitute a satisfactory ground anchor installation right document.
Where the neighbouring land is a public road, the requirement for consent under section 139 of the Roads Act 1993 (NSW) is maintained.
The changes also create different classes of ground anchors, namely encroaching, temporary encroaching and removable encroaching. Each of these classes has different requirements.
For removable encroaching ground anchors, building practitioners must:
- before work commences, provide the Secretary for the Department of Customer Service (Secretary) with a document detailing the process for removal of the removable reinforcement tendon and when that will occur
- provide evidence that the removable reinforcement tendon has been removed before applying for the final occupation certificate or before the development is complete (if no occupation certificate is required).
For temporary encroaching ground anchors, building practitioners must:
- before work commences, provide the Secretary with a document detailing the process for destressing and when that will occur
- provide evidence that the ground anchor has been destressed before applying for the final occupation certificate or before the development is complete (if no occupation certificate is required).
Design practitioners are still required to provide particulars for regulated designs, such as specifications for ground anchors that are inclusive of the requirements set out by AS 4678, and provide plans that include information regarding the site boundaries, the location of all ground anchors, and any associated shoring or retaining wall system. The full list of particulars for ground anchors can be found here.
The introduction of the Order requiring building practitioners to provide evidence of a registered easement created a flurry of concern among market participants. The relaxation of this requirement is undoubtedly a relief to many.
In the media
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Pipeline of new homes construction grows Detached home commencements fell by 10.1 per cent in the final quarter of 2021 but the number of homes under construction continues to grow (13 April 2022). More…
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Published – articles, papers, reports
Australian Building and Construction Commission – Industry Update, March 2022 edition This edition of Industry Update focuses on a recent federal court decision delivered on logos, mottos and indicia, including the Eureka flag. We also highlight wages and entitlements for the building and construction industry. Read more here.
RLB Crane Index “According to the release of the Q1 2022 RLB Crane Index®, crane numbers across the country rose sharply in the past six months by 95 cranes (up 13 per cent) to reach a record 813 cranes. This is the highest number of cranes ever recorded across Australia since the inaugural count in 2012” stated Domenic Schiafone, RLB’s Oceania Director of Research and Development (14 April 2022). Read more here.
Australian Bureau of Statistics – Building Activity, Australia Provides estimates of value of building work and number of dwellings commenced, completed, under construction and in the pipeline (December 2021: released 13 April 2022). Read more here.
Community questions about asbestos in flood damaged properties How do I know if my property contains asbestos? If your property was built before 1990, it is likely to contain asbestos material. Read more here.
In the market for new tapware? Unfortunately, despite their glossy features and impressive style, not all tapware products are up to the standard that they should be, and therefore may not be fit for purpose. In Australia, most plumbing and drainage products must be WaterMark certified and installed by a licensed plumber (4 April 2022). Read more here.
Practice and courts
Dealing with material cost increases HIA has put together a fact sheet about contracts and important clauses to assist in dealing with situations arising from cost increases (13 April 2022). Read more here.
Protocol for the Commercial List, Technology & Construction List and Commercial Arbitration List This protocol takes effect on 4 April 2022 and gives effect to the protocol issued by the Chief Justice on 28 March 2022 as it applies to these lists (4 April 2022). Read more here.
The Owners – Strata Plan 87265 v Saaib; Alexandrova v The OwnersADMINISTRATIVE REVIEW – building certifier – application for accreditation – experience requirements – whether applicant has required experience.dings not expressed to be based on demeanour – applicable test for appellate intervention – whether primary judge gave sufficient weight to combined effect of relevant circumstances. EVIDENCE – tendency evidence – whether evidence relating to a separate building project was significantly probative of the issue concerning the alleged builder’s role in the building project the subject of the proceedings – s 97 of the Evidence Act considered. EVIDENCE – whether the primary judge erroneously failed to draw a Jones v Dunkel inference. CONSUMER LAW – misleading and deceptive conduct – causation – whether, absent the misleading and deceptive conduct, the property developer would have obtained a valid contract of insurance by honest means; Civil Liability Act 2002 (NSW); Competition and Consumer Act 2010 (Cth), Sch 2 – Australian Consumer Law, ss 18, 236; Evidence Act 1995 (NSW), ss 97, 101, 128; Fair Trading Act 1987 (NSW), ss 42, 68; Home Building Act 1989 (NSW), ss 92, 99..
Votano v Building Professionals Board (No 2)  NSWCATOD 42ADMINISTRATIVE REVIEW – building certifier – application for accreditation – experience requirements – whether applicant has required experience
Commissioner for Fair Trading, NSW Department of Customer Service v Kalkan  NSWCATAP 112ADMINISTRATIVE LAW – whether in reviewing administratively reviewable decision under Administrative Decisions Review Act 1997 (NSW) Tribunal is to apply version of enabling legislation in effect at time of Tribunal’s decision; Acts Interpretation Act 1901 (Cth), s 8(c); Administrative Appeals Tribunal Act 1975 (Cth); Administrative Decisions Review Act 1997 (NSW), ss 63, 63(1), 64(1), 64(5), 65(2), 83B(1); Div 3 of Pt 3; Building Legislation Amendment Act 2021 (NSW), Sch 3, cl 1 and 4 of Sch 3; cl 159 of Sch 4, cl 159(1) of Sch 4; Civil and Administrative Tribunal Act 2013 (NSW), ss 80(1)(e), 80(2)(b); Commonwealth Employees’ Rehabilitation and Compensation Act 1988 (Cth); Compensation (Commonwealth Government Employees) Act 1971 (Cth); Home Building Act 1989 (NSW), ss 4, 20, 20(1), 20(1)(a1), 20(2), 20(2)(a)–(b), 20(3), 21, 33B, 33C, 33D, 33D(1)(a)–(b); cl 2 of Sch 1; Home Building Regulation 2014 (NSW), cls 13, 14; Interpretation Act 1987 (NSW), s 30(1)(c); Migration Act 1958 (Cth).
Edwards v Commissioner for Fair Trading  NSWCATOD 40ADMINISTRATIVE LAW – administrative review – licensing – whether Applicant meets requirements for issue of licence – application of Instrument – experience – need for referee statements; Civil and Administrative Tribunal Act 2013 (NSW); Administrative Decisions Review Act 1997 (NSW); Home Building Act 1989 (NSW); Home Building Regulation 2014 (NSW).
BKB Constructions Pty Ltd v Sawan  NSWCATAP 103BUILDING AND CONSTRUCTION – home building – limitation period – s 48K (8) Home Building Act 1989 – procedural fairness – transfer of proceedings to a Court – whether Tribunal under a duty to raise limitation issue; Civil and Administrative Tribunal Act 2013 (NSW); Civil and Administrative Tribunal Rules 2014 (NSW); Home Building Act 1989 (NSW); Legal Profession Uniform Law Application Act 2014; Limitation Act 1969 (NSW).
Fitz Jersey Pty Ltd v Atlas Construction Group Pty Ltd (in liq); Yazbek v Gleeson as Liquidator of Atlas Construction Group Pty Ltd (in liq); Fitz Jersey Pty Ltd v Gleeson as Liquidator of Atlas Construction Group Pty Ltd (in liq)  NSWSC 394CORPORATIONS – remedies – where liquidator of company assigned rights to plaintiff on basis that fruits of success ultimately be paid to liquidator after payment of plaintiff’s costs – where finding earlier made that directors declared dividend in breach of s 254T of the Corporations Act 2001 (Cth) – where finding earlier made that declaration of dividend and writing off of shareholder loan voidable transactions for purposes of s 588FF of that Act – finding made of amount due by company to the plaintiff – nature of remedies that should be awarded to plaintiff – whether remedies should extend beyond requiring directors and parties into whose hands proceeds of dividends flowed to pay plaintiff the amount found to be due by the company to the plaintiff. BUILDING AND CONSTRUCTION – further findings concerning matters not decided in primary judgment; Conveyancing Act 1919 (NSW); Corporations Act 2001 (Cth); Insolvency Practice Schedule (Corporations) 2016 – Schedule 2 Corporations Act 2001 (Cth).
Bills assented to
Home Building Amendment (Medical Gas Licensing) Act 2022 No 13 13 April 2022 – Home Building Act 1989 No 147 as amended.
Regulations and other miscellaneous instruments Environmental Planning and Assessment Amendment (Miscellaneous) Regulation 2022 – LW 14 April 2022.
Environmental Planning Instruments Canada Bay Local Environmental Plan 2013 (Map Amendment No 1) – LW 14 April 2022. Lithgow Local Environmental Plan 2014 (Amendment No 5) – LW 14 April 2022. Maitland Local Environmental Plan 2011 (Amendment No 34) – LW 14 April 2022. Singleton Local Environmental Plan 2013 (Amendment No 12) – LW 14 April 2022. State Environmental Planning Policy (Planning Systems) Amendment (State Significant Development–Honeysuckle Site) 2022 – LW 14 April 2022. State Environmental Planning Policy Amendment (Disaster Recovery) 2022 – LW 14 April 2022. Dubbo Regional Local Environmental Plan 2022 (Map Amendment No 1) – LW 8 April 2022.