On 1 February 2024, Forte was served with a building work rectification order (BWRO) issued by the NSW Building Commissioner under the Residential Apartment Buildings (Compliance and Powers) Act 2020 (RAB Act). The order alleged “serious defects” in relation to our apartment development in Jannali.
Although the order was not directed at the builder, the allegations directly concerned works undertaken by our builder. Forte was placed in the position of being the only party entitled to appeal to the Land and Environment Court.
After careful review, it became apparent that there were significant legal issues with the BWRO, including:
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many of the defects described did not meet the statutory threshold of “serious defects”, and
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in several instances the Building Commissioner relied on non-compliance with “deemed-to-satisfy” solutions of the National Construction Code, whereas the RAB Act requires a failure to meet “performance requirements”.
While the builder commenced judicial review proceedings in the Supreme Court to challenge the validity of the BWRO, Forte also had to evaluate the risks of compliance with an order of questionable legality. After nearly a year of proceedings, the Building Commissioner revoked the BWRO only two days before the scheduled final hearing, effectively conceding the matter. The Supreme Court subsequently ordered the Commissioner to pay legal costs.
The Building Commissioner was ordered by the Supreme Court to pay the builder’s legal costs. You can view the Supreme Court’s judgment on the question of costs here: https://www.caselaw.nsw.gov.au/decision/197426ede9adddc200ea7c9f
Key Takeaways for Forte and our stakeholders:
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Not every decision by a regulator or public body is legally sound. It is critical to obtain legal advice before acceding to such decisions.
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Even when a decision is directed at another party, if it affects our projects or interests, we must carefully consider how to protect our position.