Major Projects & Construction 5 Minute Fix 101: duty of care, infrastructure strategy, and when can you be sued for a building action

By the Major Projects & Construction team
24 Jun 2022
Time to read: 5 minutes

Get your 5 Minute Fix of legal trends in Major Projects and Construction. In this edition: the Supreme Court of NSW considers the statutory duty of care under the Design and Building Practitioners Act; the Qld Government releases its 20-year State Infrastructure Strategy 2022; the Victorian Court of Appeal considers the 10- year limitation period for bringing a "building action"; and the NT Government releases its Electric Vehicle Strategy and Implementation Plan.

The statutory duty of care and "absurdity" under the DBP Act

The Owners – Strata Plan No 84674 v Pafburn Pty Ltd [2022] NSWSC 659 is the latest case to consider the statutory duty of care under the Design and Building Practitioners Act 2020 (NSW) (DBP Act).

The Owners – Strata Plan No 84674 commenced proceedings against Pafburn Pty Ltd (the Builder) and Madarina Pty Limited (the Developer), alleging that both the Builder and the Developer acted in breach of the statutory duty of care prescribed by section 37 of the DBP Act, because:

  • the Builder "constructed the building work defectively"; and
  • the Developer engaged in "construction work" for the purposes of section 37 of the DBP Act.

Justice Stevenson found that:

  • a person who "had the ability and the power to control how the work was carried out" will be considered to have "substantive control over the carrying out of any work" for the purposes of clause (d) of the definition of "construction work" in section 36(1) of the DBP Act; and
  • a "person" referred to in section 37(1) of the Act (as owing the statutory duty) could include the current owner of the land in relation to which the construction work is carried out.

In respect of the second finding, Justice Stevenson noted that the duty would not apply to the original owner who had the construction work carried out.  To do so would create the "obvious absurdity" that the original owner owed the duty to itself. His Honour resolved the problem by reading the reference to "each owner" in section 37(2) (to whom the duty of care is owed) "as not including an owner that has itself carried out" the relevant construction work.

Notably, Pafburn was decided five days after Goodwin Street Developments Pty Ltd v DSD Builders Pty Ltd [2022] NSWSC 624 which also considered the statutory duty of care under section 37 of the DBP Act ( as discussed in 5MF 100).

State Infrastructure Strategy 2002: Queensland's 20-year vision

Following the recent release of Infrastructure NSW's State Infrastructure Strategy ( as discussed in 5MF 100), the Queensland Government released its equivalent 20-year State Infrastructure Strategy 2022. The Strategy sets the vision for the State's infrastructure pipeline through the lens of five focus areas:

  • realising renewable energy capability;
  • building a 2032 Games legacy;
  • connecting Queensland's regions (both digitally and physically);
  • creating livable communities; and
  • driving performance and productivity.

Like NSW's State Infrastructure Strategy, renewable energy alternatives and other initiatives to address the impacts of climate change have become clear priorities in Queensland's infrastructure planning. The Strategy prioritises renewable energy, affirming the zero net emissions target by 2050 under the Qld Climate Adaptation Plan 2020-2030, along with the 50% renewable energy target by 2030. In addition, the Strategy identifies Brisbane 2032 climate-positive Olympic and Paralympic Games infrastructure as a priority action.

The Strategy also highlights digital and innovation opportunities. In particular, the Government is investigating the introduction of a statewide digital twin workbench that will improve infrastructure planning and optimize asset maintenance.

The Strategy will be revised every four years, reflecting the evolving nature of infrastructure.

Limitation periods: When does the clock start running where multiple occupancy permits are issued?

The Victorian Court of Appeal recently considered the 10-year limitation period for bringing a "building action" under section 134 of the Building Act 1993 (Vic).

In Lendlease Engineering Pty Ltd v Owners Corporation No 1 PS526704E & Ors [2022] VSCA 105, Lendlease was engaged in late 2004 to refurbish one apartment building and construct an adjacent apartment building. The works required Lendlease to install a sunshade louvre system. The Owners Corporation alleged that the system was defective and needed replacement.

In this case, four occupancy permits were issued. Each permit was issued on the completion of specific stages of the work, but each later permit restated the building work that had been the subject of an earlier occupancy permit. Relevantly, the third-issued occupancy permit related to the occupancy of most (but not all) of the apartments. The final occupancy permit provided that all apartments and associated common property of the buildings were suitable for occupation.

Lendlease sought to strike out the part of the Owners Corporation's claims related to the apartments subject to the third occupancy permit because the claims had been brought more than 10 years after the relevant occupancy permit was issued. However, the Owners Corporation argued that the 10-year limitation period commenced on the date of issue of the final occupancy permit. VCAT had previously upheld the Owners Corporation's position, and the Supreme Court of Victoria had dismissed Lendlease's appeal on this issue.

In a unanimous judgment, the Court of Appeal accepted Lendlease's argument that the limitation period had expired because the relevant occupancy permit for those earlier-certified apartments was the third issued. The Court found that the ordinary meaning of the words used in section 134:

"suggests that the occupancy permit "in respect of the building work" is intended to apply to the occupancy permit that is first issued in relation to the defective building work the subject of the building action – not any "final" occupancy permit."

As the apartments with the defective louvre system were the subject of the third-issued occupancy permit, the clock started running in respect of those apartments on the date of the third (and not the final) occupancy permit. The Court, accordingly, allowed Lendlease's appeal on this point.

This decision highlights the importance of keeping track of all issued occupancy permits and the works to which those permits apply. Rather than limitation periods under the Building Act 1993 (Vic) "resetting" each time a new occupancy permit is issued in respect of certain work, different parts of the building may be subject to different dates by which claims must be made.

Electric Vehicles and Action Plans for the Northern Territory

This month, the NT Government released its Electric Vehicle Strategy and Implementation Plan (the Plan), outlining its five-year programme to support the uptake of Electric Vehicles (EV). In the Plan, the NT Government recognises the benefits of EVs to the environment, the economy and consumer households. The Plan identifies four priority areas for action:

  • vehicle costs and availability;
  • vehicle charging;
  • knowledge, skills and innovation; and
  • consumer information.

The Plan acknowledges the characteristics of the NT that present challenges: the geographical location, long distances, small and dispersed population and extreme climatic conditions, and the need for new infrastructure and specialised servicing and maintenance skills. While the Government accepts that the NT is unlikely to play a leading role in EV uptake in Australia, it plans to have the policies, skills and infrastructure in place to smoothen the transition to EVs.

To that end, the NT Government has set out actions under the Plan, which will have its progress reviewed annually. Key actions include:

  • allocating $300,000 to the EV Charger Grants Scheme, which will provide grants to EV owners to install EV chargers;
  • from 1 July 2022 to 30 June 2027, a waiver of registration fees and stamp duty fees when purchasing plug-in EVs valued up to $50,000;
  • promoting EV tourism opportunities;
  • providing more consumer information on EVs to the public; and
  • focusing on EV technology and battery lifecycle initiatives.

Finally, the NT Government plans to collaborate with the States to develop guidelines and standards for charging and increasing the Government's EV fleet and charging infrastructure at government buildings and urban and regional centres.

Clayton Utz communications are intended to provide commentary and general information. They should not be relied upon as legal advice. Formal legal advice should be sought in particular transactions or on matters of interest arising from this communication. Persons listed may not be admitted in all States and Territories.