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Client Update: Breaking Ground

29 July 2013

In brief: Breaking Ground is a regular publication by the Allens Infrastructure and Construction group to keep you informed of the latest news and developments in this area. For more information or for legal advice, please contact one of the Partners listed below. We look forward to hearing from you.

Allens publications

Client Update: Queensland streamlines processes for taking security over mining and petroleum interests – 22 July 2013

Recent Queensland legislation reforms the way financiers effect security over mining and petroleum interests. Instead of having to apply for Ministerial approval or lodge caveats, the law now allows financiers to electronically lodge and register mortgages over 'mining tenements' and 'petroleum authorities' with the Department of Natural Resources and Mines. Partner Karla Fraser and Law Graduate Riley Downie report.

Focus: Myanmar accedes to the New York Convention – 18 July 2013

In what will be seen as a positive move to attract inbound capital, Myanmar has formally acceded to the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards. Allens Special Counsel Nicola Nygh and Linklaters Associate Steven Pettigrove report.

Client Update: Victoria gets smarter with fast-tracked VicSmart planning process – 11 July 2013

Planning Minister Matthew Guy has released a discussion paper, together with draft regulations and planning scheme clauses, that sets up a proposed new assessment process for simple, straightforward planning applications. VicSmart applications will be exempt from notice, referral and appeal processes and require that a decision is made by the local Council Chief Executive Officer within 10 days from the application being lodged. Special Counsel Meg Lee takes a closer look at the details of the proposal.

 

Breaking Ground blog

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Breaking news

Construction industry
Productivity Commission hears calls for protection of infrastructure sales – 23 July 2013

Mining companies have appealed to the Productivity Commission for increased regulatory protection around the privatisation of major state infrastructure projects. This concern by those in the mining industry follows the recent sale of Port Botany and Port Kembla by the New South Wales Government, and proposed sales of other ports in NSW and Queensland. The mining companies claim that the sale of crucial infrastructure, such as ports, to the private sector leads to higher user costs, which will result in increased risk around access to infrastructure for mining projects.

Source: Mark Ludlow, 'Miners call for tighter port regulations', AFR, 23 July 2013

$25 billion tax incentive for private investment in infrastructure – 17 July 2013

A new tax incentive to support up to $25 billion in new private sector infrastructure spending started last week. Under this incentive, the Infrastructure Coordinator can designate a project as eligible for the tax concession, with a prerequisite that it has been assessed as a 'Ready to Proceed' on Infrastructure Australia's Priority Project List. Federal Assistant Treasurer David Bradbury said it would encourage private sector investment in nationally significant projects. The incentive also aims to encourage innovation in the private sector, eg by encouraging investments in smart infrastructure that better utilises existing infrastructure, such as the roll-out of managed motorways technology. Before applications open, Infrastructure Australia will conduct two industry consultation workshops to facilitate better understanding of the tax incentive. One workshop will be held in Sydney on 30 July 2013. The other will be held in Melbourne on 2 August 2013. You can find further details and register for the workshop here.

Source: Marion Lopez, 'Private sector tax reform frees $25B for new infrastructure', ConstructionIndustryNews.net, 17 July 2013

Energy and resources
Downer awarded Taralga Wind Farm contract – 15 July 2013

Downer EDI Limited recently announced it had been awarded a contract by Vestas Australian Wind Technology Pty Ltd for the civil and electrical balance of plant infrastructure work on the Taralga Wind Farm project in the Southern Tablelands of NSW. This follows the recent awarding of a contract to Downer, by project owner CBD Energy Limited, to construct the transmission line and connection to Marulan substation. The two contracts combined have a total value of approximately $65 million. The Taralga Wind Farm project will be commissioned progressively from the third quarter of the 2014 calendar year. The wind farm will comprise 51 Vestas wind turbines with a total gross output of 106.8 megawatts and, when complete, will supply power to approximately 45,000 homes.

Source: Downer Group ASX Announcement, 'Downer awarded Taralga Wind Farm Contract', Downer Group, 15 July 2013

Ports
Expansion recommended for Bunbury Port – 17 July 2013

In a recent media statement, the EPA announced that it recommends Lanco Resources Australia Pty Ltd's proposal to expand Berth 14A at Bunbury Port, Western Australia. The expansion includes a coal storage and loading facility within Bunbury Port's Inner Harbour, and the facility will accommodate 15 million tonnes of coal exports per annum. Lanco's proposal is consistent with Bunbury Port Authority's objective of guiding future development and associated decision-making within the Port's Inner Harbour. EPA Report 1486 is available here.

Source: EPA Media Statement, 'EPA recommends approval for new Bunbury Port berth and coal export facility', Environmental Protection Authority, 17 July 2013

Rail
Sydney's Central Station set for makeover – 12 July 2013

Thousands of jobs and homes could be created in Sydney in a new initiative announced recently by the NSW Government. The initiative proposes the development of a large 'dead space' in inner Sydney, and the renewal of the railway line corridor between Central Station and Eveleigh. The time frame for development is 15–20 years.

Source: 'Sydney's Central Station set for makeover', News.com.au, 12 July 2013

Roads
Homes under threat from East-West tunnel plans – 16 July 2013

Collingwood residents near Hoddle Street have been told that their properties are likely to be demolished to make way for the first stage of the East-West link road tunnel. Property owners recently received letters from the State Government's Linking Melbourne Authority. The letters informed them that it was likely that their homes would be compulsorily acquired for the $6 billion to $8 billion road tunnel. Premier Denis Napthine released details of the route for the 6km east-west road, which include extensive changes to the Eastern Freeway entrance.

Source: 'Gateway key to East-West Link', Herald Sun, 17 July 2013

Other projects
$755 million boost for Sydney and Illawarra water services – 19 July 2013

NSW Minister for Finance and Services Greg Pearce has announced that contracts worth $755 million have been awarded to deliver major upgrades across the Sydney Water network. Mr Pearce said that, after an extensive procurement process, a range of delivery contractors have been selected to design and construct assets for the water and wastewater systems. He also said that 'Sydney, the Blue Mountains and the Illawarra have a growing population and with that comes the need for efficient water and wastewater services in existing and developing suburbs and for business. The selection of these contractors follows the appointment last year of a program management advisor, a project management team, and four renewal delivery contractors to deliver a $1.3 billion investment in water infrastructure. Project works will include water main renewal and sewer upgrades.'

Source: '$755 million boost for Sydney and Illawarra water services', Sydney Water News, 19 July 2013

Recent cases

Adelaide Interior Linings Pty Ltd v Romaldi Constructions Pty Ltd [2013] SASC 110 – security of payment

Romaldi Constructions Pty Ltd entered into a subcontract with Adelaide Interior Linings Pty Ltd for the supply and installation of internal and external linings at Burc College. Following a dispute, Romaldi Constructions engaged another subcontractor to complete the work and Adelaide Interior issued invoices for the work. After Romaldi Constructions refused to pay, Adelaide Interior issued a payment claim and sought an adjudication for the amount owed ($51,219.83) under the Building and Construction Industry Security of Payment Act 2009 (SA) (the BCISP Act). Before Adelaide Interior could seek an adjudication certificate, Romaldi Constructions sought, and was granted, an injunction against the adjudication in the District Court, on the basis that Romaldi was at risk of becoming insolvent and that Adelaide Interior had abandoned the project and failed to complete the work.

On appeal to the Supreme Court of South Australia, Justice Anderson upheld the appeal and discharged the injunction, thereby allowing Adelaide Interior to enforce the adjudicated amount. His Honour found that the District Court had failed to recognise the underlying purpose of the BCISP Act. That is, subcontractors owed money for work undertaken in accordance with a construction contract are entitled to recover payments related to the carrying out of that work without delay and regardless of any ongoing disputes. In other words, his Honour ruled in favour of the proposition 'pay now, argue later' regarding adjudications made under the BCISP Act. Read more>>

Recent legislation

Commonwealth
Tasmania
  • Gas Infrastructure (Planning Permit Exemption) Regulations 2013 (Tas). These regulations: (a) prescribe the gas infrastructure development work that, providing it meets certain criteria prescribed in these regulations, does not require a planning permit under the Land Use Planning and Approvals Act 1993 (Tas); and (b) are made consequentially on the repeal of the Gas Infrastructure (Planning Permit Exemption) Regulations 2003 (Tas) under section 11 of the Subordinate Legislation Act 1992 (Tas).


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