Background
Great Tang Brothers Pty Ltd was the developer of a mixed commercial and residential apartment building at 26 Jasmine Street, Botany. The Building Commissioner, acting as delegate of the Secretary of the Department of Customer Service, issued a Building Work Rectification Order (BWRO) on 23 January 2025 under the Residential Apartment Buildings (Compliance and Enforcement Powers) Act 2020 (NSW).
The developer appealed under s 49(1) of that Act. At a Court-arranged conciliation conference on 27 July 2026, the parties agreed on a replacement BWRO, set out in Annexure A to the judgment.
The Court’s Holding
Commissioner O’Neill upheld the appeal and substituted the original BWRO with the agreed BWRO in Annexure A. The Court exercised its power under s 49(3)(c) of the Act to replace an existing rectification order with another order the Secretary could have made.
The parties agreed that the relevant building work could result in serious defects and that compliance with the substituted order required specified work to eliminate, minimise or remediate those defects. The Commissioner was satisfied that the agreed outcome was one the Court could properly make under s 34 of the Land and Environment Court Act 1979 (NSW).
Key Takeaways
- A BWRO appeal may be resolved through a conciliation agreement and substituted order.
- The Court may replace a BWRO with another order the Secretary could have issued under s 49(3)(c).
- The substituted order required the developer to carry out specified work addressing identified serious defects.
Why It Matters
The decision illustrates the Land and Environment Court’s role in giving effect to negotiated resolutions of apartment-building enforcement appeals where the proposed outcome falls within the Court’s statutory powers.
It also confirms that a developer can remain subject to a rectification regime even where the original BWRO is replaced on appeal, provided the replacement order addresses qualifying serious defects.