Tag: politics

NSW Building Approvals Set for Reform Under 2026 Bill 

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The NSW Government has proposed the Building (Approvals and Practitioners) Bill 2026, recommending significant reforms to the state’s building certification system. If enacted, the Bill would overhaul the current framework of construction and occupation certificates with a new regime based on building and completion approvals, while repealing several existing pieces of legislation, including the Building and Development Certifiers Act 2018, the Design and Building Practitioners Act 2020, and parts of the Environmental Planning and Assessment Act 1979 relating to building certification.

Among the proposed changes is a new process allowing building approvals and completion approvals to be issued in stages. Applicants undertaking staged projects would be required to submit a staging schedule with their initial application, while approval authorities would need to consider how each stage interacts with the broader development. Moreover, the Bill outlines a new mechanism for varying building approvals and introduces a post-commencement authorisation process where work has begun without the necessary approval.

The proposed legislation would also alter the current position by restricting applications for building and completion approvals and completion approvals to parties who have obtained the landowner’s consent. This represents a departure from the existing regime, where a person with the benefit of development consent may generally apply for construction and occupation certificates even if they do not own the land.The expanded consent requirement may create additional hurdles for developers, tenants and others with interests in land who require approval to commence or finalise works, particularly where third-party landowner cooperation is difficult to obtain.

Lastly, Bill introduces a regulatory framework for prefabricated buildings and would bring manufactured homes within the planning approval regime by requiring development consent in circumstances where it is currently unnecessary. It also strengthens enforcement powers by making non-compliance with certain written directions issued by approval authorities a criminal offence and removes the Land and Environment Court’s existing power to substitute its own decision on certain certification disputes. Although the reforms aim to modernise and streamline approvals, many of the changes remain subject to parliamentary approval and have not yet commenced.

Clarifying Director Liability Under the Design and Building Practitioners Act

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The scope of directors’ personal liability under the Design and Building Practitioners Act 2020 (NSW) (DBP Act) continues to be refined as courts consider when individuals may be held responsible for defective building work. The recent Supreme Court decision in Strata Plan 92183 v Samdora Pty Ltd [2026] NSWSC 406 provides important guidance on the distinction between directors who actively participate in construction activities and those whose involvement is limited to broader business responsibilities.

The dispute arose from alleged construction defects affecting a residential townhouse project in Mangerton. The owners corporation sought to hold the parties involved in the development accountable, including the builder and developer, and the individuals who directed each entity. A central issue before the Court was whether the directors could be personally liable for failing to discharge the statutory duty of care imposed by section 37 of the DBP Act (NSW). 

In this case, the owners corporation brought proceedings concerning defective works at a townhouse development in Mangerton. The claim was brought against the builder, developer and their respective directors, with allegations that both directors had breached the statutory duty of care imposed under section 37 of the DBP Act. 

The DBP Act adopts a broad approach to identifying who may be responsible for construction work. Section 36 captures not only those carrying out physical building activities, but also individuals who play a significant role in directing or overseeing the works, including through supervision, coordination, project management or control. Accordingly, a director’s exposure will depend on the extent of their actual involvement in the construction process. 

The Court considered the position of each director separately.In assessing the developer’s director, the Court focused on whether his involvement went beyond that of a passive participant. Although he attended certain site inspections and had some involvement with the project, he did not demonstrate meaningful control over, or responsibility for, the construction activities. As a result, the Court was not satisfied that his role was sufficient to bring him within the scope of the statutory duty of care under the DBP Act.

The Court reached a different conclusion in relation to the builder’s director, whose appointed role as supervisor placed him directly within the construction process.The Court accepted that his responsibilities placed him within the scope of the DBP Act and that he thus owed a duty of care to the owners corporation. Notably, each defect was assessed separately, with liability only arising where the evidence showed that the issue could have been identified through appropriate inspections and supervision.

Ultimately, this decision confirms that holding the position of director alone does not automatically create liability under the DBP Act. The critical question is the individual’s practical role in the construction process. Directors with direct statutory responsibilities or active involvement in supervision and control face greater risk, while those performing functions separate from construction activities will require evidence showing a connection to the alleged defects.

NSW Supreme Court Clarifies Requirements for Valid Construction Payment Claims

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The NSW Supreme Court’s judgment in Kumar v Frankies Cranes Pty Ltd [2024] NSWSC 1264 illustrates that a successful claim under the Building and Construction Industry Security of Payment Act 1999 (NSW) (SOPA) requires more than an asserted entitlement to payment. Before an adjudicator can determine a claim, the statutory pre conditions imposed by the Act must first be satisfied.

The matter concerned a crane left on Mr Kumar’s property after construction work undertaken by another builder had been completed. Frankies Cranes maintained that, following the completion of those works, Mr Kumar orally agreed to pay an ongoing weekly charge for the crane to remain on the site. Acting on that alleged arrangement, the company lodged a SOPA payment claim and later received an adjudication determination awarding it over $140,000.

Mr Kumar sought to set aside the adjudicator’s decision, claiming that the adjudicator was not empowered to determine the dispute in circumstances where no binding construction agreement had been formed under SOPA. 

The Supreme Court agreed. After considering the evidence, it was not persuaded that the alleged conversation giving rise to the agreement had occurred. The Court found that the claimed agreement did not fit with the commercial context of the parties’ relationship or the events leading up to the dispute.In the absence of a construction contract, the adjudicator had no authority to determine the payment dispute.

The Court also concluded that the payment claim had not been validly delivered. Although it had been emailed to an address appearing on Mr Kumar’s business card, the address had never been identified for the purpose of receiving payment claims, and Mr Kumar’s asserted that he did not receive the email. Because proper service is another essential jurisdictional requirement under SOPA, the adjudication determination could not stand.

The decision demonstrates that compliance with SOPA extends beyond establishing an entitlement to payment. Parties seeking to rely on the Act should ensure contractual arrangements are properly established and that payment claims are delivered in accordance with the statutory requirements, as a failure to satisfy either prerequisite may render an adjudication determination invalid.