Construction: Part 3 - Non-residential construction

The NSW Land and Environment Court dismissed a heritage homeowner's claim against neighbouring trees, finding insufficient evidence to prove the trees caused structural damage. The decision establishes that property owners must demonstrate clear causal connections between specific trees and alleged damage, rather than relying on proximity alone.

This monthly roundup examines five significant NSW Supreme Court and Court of Appeal decisions from August 2026 that clarify critical aspects of the Building and Construction Industry Security of Payment Act 1999, including payment claim validity, procedural fairness in adjudications, and enforcement of judgment debts. The cases address contentious issues such as the 12-month limitation period for payment claims, the relevance of unpaid judgment debts in security for costs applications, and the scope of sec

The Court of Appeal of the NSW Supreme Court has found that emailing a link to documents stored in an online repository did not constitute valid service under the Building and Construction Industry (Security of Payment) Act 2021 (WA), and that strict compliance with the Act’s one-business-day service requirement was necessary to establish jurisdiction.

The New South Wales Government has introduced Decennial Liability Insurance (DLI), a groundbreaking 10-year no-fault insurance policy for new apartment buildings that guarantees protection against serious defects even if developers or builders become insolvent. This legislative reform, passed through the Fair Trading and Building Legislation Amendment Bill 2026, fundamentally changes how apartment owners are protected from structural failures and serious defects.

Easements present significant challenges in property development, from securing third-party consent for infrastructure connections to navigating strict statutory requirements under Queensland's Planning and Building Acts. Understanding when easement holder consent is mandatory, what legal remedies exist when landowners refuse cooperation, and how approval conditions requiring new easements can create project uncertainty is essential for developers navigating these complex property rights.

Vanessa Thompson from Cooper Grace Ward's property, planning and environment team sits down with private client partner Scott Hay-Bartlem to share her professional journey and insights into the firm. The conversation explores the evolution of planning and environment law while offering a glimpse into balancing a legal career with family life.

Directors who sign retail leases on behalf of company tenants often provide personal guarantees without fully understanding the scope of their liability. This liability can extend far beyond unpaid rent to include outgoings, interest, make-good costs, and enforcement expenses, persisting even after resignation or business sale. Understanding the distinction between guarantees and indemnities, and knowing when statutory protections may apply, is essential for directors seeking to limit their personal exposur

When can a commercial landlord in Queensland legally terminate a lease, and what procedural requirements must be followed? Understanding the distinction between a tenant's breach and the landlord's right to re-enter is critical, as non-compliance with the Property Law Act 2023 can invalidate termination attempts and expose landlords to legal risk.

Recent NSW court decisions are establishing new protections for residential owner-occupiers under the Security of Payment Act, with judges granting stays on enforcement where contractors pose insolvency risks. These rulings recognize that residential owners face fundamentally different risks than commercial parties, cushioning the impact of legislation originally designed for business-to-business construction disputes.

Special counsel Mark Cowan shares his journey to Cooper Grace Ward after nearly two decades in property, planning and environment law, discussing what attracted him to the firm's collaborative culture. The conversation explores how planning and environment law has transformed into a dynamic field spanning urban development, renewables, infrastructure, agriculture and mining, while examining the persistent challenge of delivering infrastructure efficiently amid shifting government policies.