Member Alert

Property Person of the Year 2011

The recipient of the 2011 Property Person of the Year award is Mr Garry Rothwell, founder and principal of the the Winten Property Group.

 The award will be presented at a charity fundraising luncheon on Thursday 1 December 2011.

The Property Person of the Year Award annually recognises an impressive community leader who has played a key role in helping build Australia.

Founded in 1972 off the back of his architectural training Garry has undertaken over 180 development projects in his 39 years of operation, building a reputation for quality of design and innovation.

Garrys group has been a consistent winner of industry awards and in particular was the winner of the inaugural Urban Taskforce Development Excellence Award in 2002 for the Forum at St Leonards.

Garry pioneered Transit Orientated Development and Forum remains the template for high density mixed use developments over railway stations.

Along with his development activities Garry is an active supporter of various charities, including the dedication of time through directorship roles, and a patron of heritage preservation.

Glenn Wheeler, broadcaster for 2GB and presenter on the Seven Network’s “The Morning Show” will be Master of Ceremonies.

We urge you to show your support of this event by taking a table.

Funds raised on the day will support two charities, Warrah Disability Services based in Dural and St. Vincent’s Prostate Cancer Centre – both very deserving. To date $1.52 million has been raised for charity through this event. 

A booking form is here. More details on the event are here.

NSW Planning Review

Members of the community, including developers, now have an opportunity to make written submissions to the NSW Planning Review (before they release an issues paper for public comment).  These initial submissions must be lodged by 4 November 2011. 

We have been advised that the review process will then include the release of an issues paper by 8 December 2011 where the community will have a further opportunity to make comment. Comments on the issues paper will be received until 17 February 2012.

We can expect a green paper by the end of April 2012 and draft legislation by October 2012. A new Planning Act is expected by April 2013. Further information may be accessed from here.

Submissions that have already been lodged, inclduing two from the Urban Taskforce, can be viewed here.

Alan Jones supports Urban Taskforce concerns

Influential Sydney broadcaster Alan Jones has gave some on-air support to the Urban Taskforces publicly expressed concerns about the future of the housing industry earlier this month (5 October).

Mr Jones referred to Urban Taskforce comments where we said that NSW is going to continue to decline and decline more rapidly than the other states with new record lows for housing starts.

He said there is legitimacy in what Mr Gadiel is saying.

Its all very well to talk about public consultation, but we seem to be a bureaucracy gone mad, Mr Jones said.

Well I dont know what the answer is but I will say this: development at the behest of local government, full of greenies and everybody else, and driven by bureaucracy, development at the behest of local government may well mean no development at all.”

First state significant site development

The first state significant site proposal since the change of state government has been placed on public exhibition. This proposal seeks the declaration that the site is of state significance and then the rezoning and subsequent development of approximately 100 hectares of land for urban purposes.

The proponent argues that the need for rezoning and development of the West Byron urban land release area arises from the matters including:

• the fact that there has been no residential rezoning in Byron Shire since 1988 and the majority of residential zoned land identified in the current Byron LEP was approved for subdivision by the mid-1990s;
• the lack of substantial land release for approximately 15 years has lead to a long term restriction of residential land and housing;
• diversity in housing choice, and particularly demand for small lots and dwellings, is not well catered for in Byron Shire. The majority of housing in the residential areas of Byron Bay is in the form of detached houses on large lots, or strata units (dual occupancy or apartments); and
• additional housing supply should provide some relief on housing affordability pressures in terms of supply, and in terms of choice.

The West Byron study area is identified in the State governments Far North Coast Regional Strategy as a potential future urban release area and the proponent argues that the site presents an opportunity to create a highly walkable self-sufficient community.

The study states that the land release area will generate approximately $300 to $400 million in economic turnover which will translate into immediate and flow-on local and regional economic activity. It is suggested that this will generate approximately 1,800 jobs in construction activity.

It’s interesting to note that Byron Shire Council has deferred several important planning matters, in some cases for several years, due to lack of staff resources and evolving priorities. Council had identified the lack of resources as a reason for not progressing the rezoning of West Byron. The state significant site process has enabled this important planning matter to proceed without reliance on the local council. Further information, including the exhibition material can be accessed from here.

Local Planning Panel appointed

In previous Member Alerts we have reported on the creation of the “Local Planning Panel”. This panel will examine the Standard Instrument with a view to recommending changes to the Minister. (The Standard Instrument is the template for all new local environmental plans.)

The government has previously announced that the panel is to be composed of departmental and local government representatives, with a chairperson who has been approved by both.

On 28 September 2011, the Minister approved appointment of Tony McNamara to the position of the Independent Chair of the Panel. Mr McNamara is the Director of Environment and Planning Services, Canada Bay Council and the immediate past NSW President of the Planning Institute of Australia.

Further information on the operation of the panel and its others members is here.

We are concerned that this panel is entirely composed of full-time public servants working either for local government or the Department of Planning and Infrastructure. We have made a detailed submission to government and the panel on the reform of the Standard Instrument.  In our view, the panel would be improved by including non-government individuals who can bring an applicant’s perspective.

Changes to the Home Building Act

The NSW Parliament has passed legislation to amend the Home Building Act. This Act imposes a statutory warranty on residential builders, and, for builders of housing of three levels or less, requires the builder to take out home warranty insurance.

The Urban Taskforce has been making representations seeking the reform of the Home Building Act for some time. Our involvement has focused on the scope of the statutory warranties, which we think are far too broad, and discourage quality contractors for bidding for high density residential construction work.

The bill makes a number of changes to the status-quo. However, despite media reports that suggest otherwise, as far as the statutory warranties go, the bill is a net negative for the industry.

The bill seeks to make two major changes: the abolition of proportionate liability and the introduction of a new six year/two year statutory warranty.

The first measure will have a harsh impact on contractors. The second measure has the potential to be positive, if it were revised, but, without revision, it is unlikely to offer sufficient benefits to offset the abolition of proportionate liability. Its worth explaining this in a bit more detail.

Proportionate liability

In 2002, the NSW Parliament enacted the Civil Liability Amendment (Personal Responsibility) Act. Among other things this bill introduced provisions that were designed to ensure that someone that is jointly responsible with others will be liable only to the extent of their responsibility.

The new legislation will turn the 2002 reforms on their head, so that when there is, in truth, joint responsibility for a problem between a contractor and another party, the contractor may be held 100 per cent liable.

Under the new provisions, the builder will be obliged to shoulder 100 per cent of the liability, even though other parties contracted by the property owner at the time were also at fault. While a builder may commence their own action to recover money from others, this will be the builders problem, not the home owners.

The new six year/two year statutory warranty

The bill replaces the existing seven year statutory warranty time period with the existing home warranty insurance periods of six years for structural defects and two years for non-structural defects for new contracts.

In-principle the new statutory warranty periods are a welcome move. However, in order for this to be a truly meaningful reform, it is essential that a new definition of structural defect is inserted into the Home Building Act 1989. As the law stands, the legal definition of structural defect bears absolutely no relationship with the plain English understanding of the phrase.

The existing definition of structural defect is set out in the Home Building Regulation 2004. Under this definition:

• any defect which is likely to result in physical damage to any part of a building is a structural defect; 
• any defect which is likely to result in the destruction in any part of a building (e.g. a door handle is part of building, as is a roof tile and a window) is a structural defect;
• any defect which is likely to mean only a part of a building, however small, is not able to be used, until it is fixed, is a structural defect.

Most ordinary people would understand that a structural defect is a defect that makes a buildings occupation dangerous. Most people would not instinctively regard leaking windows or loose tiles as structural defects. This does not mean that such defects are not important; they are. But they should not be grouped in with the most serious form of defect – a structural defect. We have suggested a more appropriate definition of structural defect.

Without a new definition most defects will be regarded as structural defects and be subject to the six year, not the two year timeframe. When taken together with a six month slippage period included in the bill, the reform effort of the government will simply reduce the statutory warranty from seven years to six-and-a-half years.

Such a minor change will have little beneficial impact on the current reluctance of quality contractors to be involved in higher density new home construction.

The Minister for Fair Trading, Anthony Roberts, has told Parliament that I am aware that some industry groups have strong views that the current definition is too wide and requires urgent revision.”

I have asked Fair Trading to examine this issue in further detail, particularly in the context of a broader review of the home building legislation,” Mr Roberts said.

Other reforms

Mr Roberts has foreshadowed a more comprehensive review of the Home Building Act next year.

I have made it clear to stakeholders that one of my highest priorities as Minister for Fair Trading is to undertake a broader, comprehensive stocktake of the home building legislation, starting in early 2012,” he said.

We will, in collaboration with other industry groups, continue to pursue more wide-ranging reforms, including:

• a compulsory defect inspection and repair scheme after two years, with an inspection report setting out the work the contractor is obliged to attend to (when the inspector confirms that work is satisfactorily complete, the contractors defect obligations are extinguished, save for latent structural defects);
• materials should only be required to comply with the relevant contract/Building Code of Australia standards at the time the materials are incorporated into the relevant building;
• whether work is fit for purpose is to be evaluated against the purpose as defined in the relevant contract or, alternatively, against the Building Code of Australia as at that time;
• experts retained by owners’ corporation in bringing claim (i.e. preparing list of defects) must be precluded from preparing scope of works and actually carrying out rectification works;
• claims should have sufficient detail;
• owners’ corporations should be obliged to present a certificate verifying adequate maintenance before a claim can be made.

More information on the new legislation is available here.

Heritage Act changes

The NSW Parliament has approved amendments to the Heritage Act.

These amendments will make it easier and simpler for new state heritage listings to be made. Under the changes Heritage Council recommendations will no longer be referred to ministerial review panels appointed personally by the Minister, although a recommendation of the Heritage Council may still be referred by the Minister to the Planning Assessment Commission for an independent review.

The government says the abolition of the ministerial review panels will remove a significant source of delay in the listing process.

The amendment Act will also require the Minister to publish all decisions relating to whether or not to direct the listing of items on the State Heritage Register and the reasons for the decisions. This may end up providing material to assist people mounting legal challenges against ministerial decisions to either list or not list properties.

The size of the Heritage Council will also be shrunk from 11 to 9.

More information on these changes is available here.

In brief

The Urban Taskforce has a new look website.  You can access it here.

The Australian Tax Office has launched a new one-stop property webpage. This new webpage provides practical guidance and easy access to all the ATO’s property-related tax information in the one location. The webpage can be accessed from here.

The Electronic Housing Code is a pilot project focused on the development of an online system for the electronic lodgment of complying development applications under the NSW Housing Code for lots 200 square metres and above. The Government is looking for an additional 24 councils to join the project. This project is a joint initiative of the Department of Planning and Infrastructure and the Local Government and Shires Association. More detail is here.

The NSW Government has established the Export and Investment Advisory Board. The Government says that this is one of its efforts to restore economic growth in NSW. The Board comprises of NSW business leaders to work with the NSW Government and share their expertise to help boost economic activity in this State. Apparently the Board will also monitor the performance of the State across key economic indicators, with particular attention to international competitiveness. Warwick Smith has been appointer chair.  The Governments media release and full membership details are here.

The new Roads and Maritime Services chief executive will be Peter Duncan, currently Deputy Director General of the NSW Department of Premier and Cabinet. The former chief executive of the Roads and Traffic Authority, Michael Bushby will step down from his position on 27 October. The new Roads and Maritime Services will start operating on November 1 of this year. Recent media on this matter is here.

The Federal Minister for Infrastructure and Transport, Anthony Albanese, has released a new report card on our cities, titled State of Australian Cities 2011. The report echosed the most recent National Housing Supply Council report which recorded a 200,000 home gap between supply and demand across Australia.  The latest report makes it clear that the the problem in Sydney was particularly severe. Sydney and NSW are singled out for other adverse mentions.  The report may be accessed from here.  The Urban Taskforce’s public response is here.

The Reserve Bank of Australia released a research paper Urban Structure and Housing Prices: Some Evidence from Australian Cities. This paper studies the structure of cities, including density and the role of price of land and housing. The results of the paper draw attention to structural factors that may have contributed to developments in the Australian housing market in recent years. This paper again highlights the importance of adequate transport infrastructure to support the development of housing; supports our argument that zoning policies that limit housing density in accessible locations close to the central business district impacts on supply and affordability. The research paper can be accessed from here.

Local Issues

A precinct plan has been finalised and published for Area 20. Area 20 is adjacent to Windsor Road in the North West Growth Centre. An Area 20 Precinct Draft Planning Package was on exhibition from 6 December 2010 until 11 February 2011. The final plan is available here. Details about the exhibition process are available here.

The NSW Department of Planning and Infrastructure has placed the draft precinct planning package for the Box Hill and Box Hill Industrial precincts on exhibition until 14 November 2011. This plan outlines new planning controls and the provision of new infrastructure for the Box Hill and Box Hill Industrial precincts in the North West Growth Centre. Box Hill is around 764 hectares and is expected to accommodate around 10,000 dwellings. The precinct will include a town centre with a population of about 28,000 people.  The exhibition material can be accessed from here.

Sydney Water has prepared an environmental assessment to assess the impact of constructing and operating water and wastewater infrastructure to service Box Hill, Box Hill Industrial and Schofields precincts. The assessment will be on exhibition 14 November 2011. Sydney Water says that work should start in 2012 and will be completed in stages until about 2025. More information can be accessed from here.

The concept plan for the redevelopment of the Cronulla Sharks Club site at Woolooware for residential, retail, sporting and entertainment facilities has been placed on exhibition until 5 December 2011. The proposal includes five-storey neighbourhood retail, entertainment and leisure centre integrated with the club, including a supermarket, specialty retail, medical and leisure facilities, and up to 651 parking spaces; eight residential apartment buildings ranging in height from eight to sixteen storeys, containing 700 units; redevelopment of the existing club and a future upgrade of Toyota Stadium and adjoining facilities. The exhibition material can be accessed from here.

NSW Planning Minister, Brad Hazzard, has written to a joint regional planning panel, in his capacity as a local MP, urging them to refuse an application for a 72 unit housing development in Forestville. A media report is here.

Parramatta now has two standard instrument compliant local environmental plans in place, the Parramatta City Centre Local Environmental Plan 2007 applicable to the town centre and the new Parramatta Local Environmental Plan 2011 which commenced on the 7 October 2011. The Parramatta Development Control Plan 2011 came into effect on 12 October 2011. The new LEP can be accessed from here and DCP from here.

The NSW Government has introduced legislation in the State Parliament to abolish to the Redfern-Waterloo Authority, and transfer its functions to the Sydney Metropolitan Development Authority. Both organisations have been operating in parallel since last year, with shared staff and the same chief executive officer, so this move comes as no surprise. As part of the changes, the NSW Government has announced that development with a capital investment value of not more than $10 million in the “Redfern-Waterloo sites will now be dealt with by the City of Sydney. More details are available here.