Who is responsible for building defects?

 

Written by David Lovato – CPC Development Lending Solutions

March 2024

Sydney’s Opal Tower might be the most high-profile case of an apartment block with severe structural problems, but it’s far from being the only one. 

In fact, a recent NSW Building Commission report found that 53% of apartments registered in the state from 2016 to 2022 have had at least one serious defect.

As a property developer, understanding who bears responsibility for building defects is crucial as it helps you manage risks effectively and ensure the project’s success. 

Understanding building defects

Firstly, it’s important to define what constitutes a building defect. 

Generally, it’s any aspect of the building that doesn’t perform to the required standards set out in your building contract, the National Construction Code, or relevant Australian Standards. 

These can range from minor issues like peeling paint, which are more cosmetic, to significant structural failures that can pose safety risks.

The developer’s role

As a developer, you play a pivotal role in the construction process, overseeing the project from conception to completion. 

While you might not be directly involved in the physical construction, you are ultimately responsible for engaging the contractors and professionals who are. 

This means that any defects found can indirectly fall on your shoulders. However, the extent of your responsibility can vary based on contracts, warranties, and the specific circumstances of your case.  

Builders and contractors 

The direct responsibility for correcting defects typically falls to the builders and contractors who carried out the work. 

Under Australian law, builders are required to warrant that their work is free from defects for a certain period — usually around 6 to 7 years for structural defects and 2 years for non-structural defects, depending on the state or territory.

It’s important for you as a developer to have clear, comprehensive contracts with your builders and contractors that outline their obligations regarding defect rectification. This not only ensures clarity but also provides a legal framework for resolving disputes should they arise.

Architect and engineers

Architects and engineers play a critical role in the design and specification of the project. So what happens if a defect is the result of poor design rather than the construction itself? 

Well, in such cases, the responsibility might lie with the engineering and design professionals, who are expected to provide designs that meet regulatory standards and are fit for purpose.

Material suppliers

The quality of materials used in construction also cannot be overlooked. After all, defective or subpar materials can lead to significant issues down the line, from cosmetic flaws to structural failures. 

Suppliers are expected to provide materials that comply with industry standards and specifications. Should a defect arise due to faulty materials, the supplier could be held responsible, again contingent on the terms of their supply agreement.

Dispute resolution

Disagreements over the responsibility for defects can sometimes escalate into disputes. In such cases, mediation and arbitration become important tools for resolution. 

There are also statutory bodies, such as the Building Commission NSW and the Victorian Building Authority, which can offer advice and assistance in resolving disputes over building defects. 

Engaging with these processes can be a constructive way to resolve problems without resorting to lengthy and costly legal battles.

Managing the process

The best approach to dealing with building defects is to mitigate the risks from the start. 

This involves:

  • Selecting reputable builders and contractors: Conduct thorough vetting, check references, and review past projects to ensure they meet your standards.
  • Implementing strict quality controls: Establish clear quality benchmarks and conduct regular inspections throughout the construction process.
  • Maintaining open communication: Foster a culture of transparency and open dialogue with your construction team to quickly address any issues that arise.
  • Understanding your legal obligations: Stay informed about your rights and responsibilities under Australian construction law and ensure all contracts are clear and comprehensive.

For property developers, navigating the complexities of building defects is part and parcel of the development process. 

While the responsibility for rectifying defects primarily lies with builders and contractors, remember you’re not just a bystander in this process. Your role involves orchestrating the various moving parts and ensuring that the project adheres to all regulatory and quality standards. This includes diligent oversight of the work being carried out by your contractors as well as the materials being used.

Crowd Property Capital is a property development finance specialist. We help property developers overcome their funding challenges by sourcing loans for land, construction and residual stock. Contact us at [email protected] or fill in this form.

 

How CPC delivered a massive profit increase for a bold developer

 

Written by David Lovato – CPC Development Lending Solutions

Feb 2024

A Brisbane-based developer identified a lucrative opportunity to boost the profitability of his townhouse project by acquiring an adjacent site. Securing finance, though, was going to be a massive challenge, due to apparent equity shortfalls.

Enter Crowd Property Capital (CPC), a construction finance specialist. 

CPC identified a lender willing to provide 100% funding after CPC explained the project’s strong financial potential and limited risk profile.

CPC secures extra finance

The approval of the DA triggered interest from other developers, due to the immediate increase in the site’s value, its more impressive scale and its excellent location (Kallangur, a growth suburb 45km north of Brisbane). The developer opted not to sell. 

CPC then secured further financing from the lender, reflecting the site’s increased value, alongside a cash equity release for the developer’s short-term funding needs.

They also explored securing investment from the Queensland government as part of their support of affordable housing and build-to-rent schemes.

When problems occur, CPC finds solutions

Set to complete in 2027, the project will deliver 156 affordable townhouses. 

Despite facing inevitable delays, CPC has helped keep the project on track by by renegotiating the loan term with the lender and finding a mezzanine lender (junior lender) to help with the acquisition costs.

The CPC advantage 

We’re grateful to the developer for giving us a glowing testimonial:

“We knew David with his extensive lender networks could provide us with options and also assist us with development expertise given his background,” he said. 

“David became a key advisor on our project by driving it through a financial lens. When we realised a larger project would become more feasible, CPC quickly arranged for one of his lenders to utilise the uplift and secure the additional block. We also took the opportunity to withdraw some equity within the project that we will use for a short-term funding.”

This story is just one of many where CPC turns complex financial challenges into success stories for developers. That’s why so many developers love working with them.

If you’re keen to see more of what we can do, take a look at our other case studies on the Seaforth Project and the Surrey Hills Project.

Crowd Property Capital is a property development finance specialist. We help property developers overcome their funding challenges by sourcing loans for land, construction and residual stock. Contact us at [email protected] or fill in this form.

 

Five things lenders look for in a development finance proposal

 

Written by David Lovato – CPC Development Lending Solutions

Jan 2024

 

When a property developer applies for finance, the lender asks themselves one basic question: how likely is the applicant to repay the loan in full and on time?

To answer that question, the lender is going to pay close attention to everything from your financial statements to your exit strategy, so they can get a clear picture of both you and your project.

With that in mind, you and your broker should present your application in a way that makes it easy for the lender to review your scenario and understand its positive features. That will increase your chances of being approved and receiving the most favourable terms.

Here are the five most common things lenders look at with a property development finance application:

1. Your finances

The lender will take a close look at your financial statements, to understand what your financial position is right now and how it’s likely to evolve throughout the process.

You’ll need to prove you’ll have sufficient cashflow to pay your bills throughout the development project and meet your obligations to the lender. As part of that process, you’ll need to provide a feasibility study that lays out all your expenses and income – and, just as importantly, when those transactions are expected to occur.

2. Your project

The lender knows that the more successful your development is, the more likely its loan is to be repaid. So the lender will scrutinise:

  • The location, design and intended use of your development
  • The construction plan and schedule
  • The contractors and materials you plan to use

Naturally, the lender will want to see proof that you’re planning to comply with building, zoning and environmental rules.

The lender will also want to know how much demand your properties are likely to receive from potential buyers. So you’ll need to provide a market analysis; the more detailed and fact-based you make this report, the better it will be received.

You’ll also need to provide a document outlining the project’s potential risks and your plan for responding to them. Don’t make the mistake of omitting risks in an attempt to avoid scaring the lender; instead, be upfront, so you can prove you would be a safe pair of hands if problems occurred during the project.

3. Your exit strategy

To reassure the lender, you will need to explain:

  • How you will repay the loan – will you raise the funds through sales, through refinancing or in some other way?
  • When you will repay the loan – will you make one lump-sum payment at the end of the build or will you make a series of payments?

4. Your track record

As part of its due diligence, the lender will want to know what projects (if any) you’ve completed in the past and how similar they are to this specific proposal.

The more experience and success you can point to, the more creditworthy you’ll appear in the eyes of the lender.

5. Your security

If you were unable to repay the loan, the lender will need to know what recourse it would have.

That includes knowing what assets it could seize, how easy they would be to sell and what their resale value would be.

Crowd Property Capital is a property development finance specialist. We help property developers overcome their funding challenges by sourcing loans for land, construction and residual stock. Contact us at [email protected] or fill in this form.

 

How Australia’s new unfair contract regulations help protect small developers

 

Written by David Lovato – CPC Development Lending Solutions

December 2023

 

Effective from 9 November 2023, the Australian Consumer Law has been updated to prohibit unfair terms in standard-form contracts. Thanks to these changes, small business owners, including property developers, will be better protected against predatory lending practices. 

Understanding the changes

An unfair term is one that:

  • Creates a significant imbalance in the parties’ rights and obligations.
  • Is not necessary to protect the legitimate interests of the party advantaged by the term.
  • Would cause detriment (financial or otherwise) to a small business if it were to be applied or relied upon.

In the context of property development financing, this means that small developers will be shielded from terms that could, for instance, impose excessive interest rates or default charges that are disproportionate to the lender’s actual costs.

Previously, the courts could declare such terms void but could not penalise lenders for including them in contracts. 

However, under the new changes, businesses could face penalties up to the greater of:

  • $50 million
  • Three times the value of the benefit obtained, or 
  • 30% of the business’s turnover in the relevant period. 

Additionally, individuals, including company directors, could also face penalties of up to $2.5 million. 

This substantial financial disincentive is expected to encourage lenders to review and amend their standard form contracts to ensure compliance​​.

The definition of a small business has also been broadened. 

Any business with fewer than 100 employees or an annual turnover of less than $10 million is afforded these protections, which apply regardless of the contract’s value. This expanded scope means that more small property developers will benefit from the protections against unfair contract terms.

What this means for you

In practice, this means a more level playing field for small developers seeking loans. 

That’s because terms that once might have been buried in the fine print, like unfair interest rates or default charges, could now cost a lender dearly if they’re deemed to be taking advantage of a small business’ lack of bargaining power.

As a result, you can now have greater confidence when entering into loan agreements. Lenders will likely be more cautious and fair in their dealings, knowing that the cost of including unfair terms can be prohibitively high.

Tips for small developers

While these changes offer a new level of protection, it’s still important for you to be vigilant when signing contracts. 

This means:

  • Reviewing contracts carefully: Always take the time to read and understand the terms of any loan agreement. 
  • Seeking legal advice: If you’re unsure about any terms, it’s wise to consult with a legal professional.
  • Understanding your rights: Familiarise yourself with the Australian Consumer Law and the specific changes regarding unfair contract terms.

Finally, a knowledgeable finance broker who specialises in property development finance, such as Crowd Property Capital, can provide invaluable assistance when trying to get your project funded. 

A good broker can help you understand the complexities of loan agreements, guiding you through the terms to ensure they are fair and do not exploit your position as a small developer.

They can also help negotiate better terms and identify the most suitable lenders who adhere to ethical lending practices.

Crowd Property Capital is a property development finance specialist. We help property developers overcome their funding challenges by sourcing loans for land, construction and residual stock. Contact us at [email protected] or fill in this form. 

Lender in focus: LSH Credit

 

Written by David Lovato – CPC Development Lending Solutions

October 2023

When it comes to property development, every detail counts, and that includes your choice of lender. 

Enter LSH Credit, which specialises in providing finance for completed residential properties. While they typically offer loans of up to $5 million, they are open to considering deals above this threshold on a case-by-case basis, albeit with lower loan-to-value ratios (LVRs).

In this second ‘lender in focus’ article, we’ll shed light on LSH Credit’s unique offerings and why they could be the finance partner you’ve been searching for.

What makes them different?

What sets LSH Credit apart from the crowd is its commitment to transparency and ethics. This means you needn’t worry about hidden clauses, mysterious charges, or unwelcome interest rate surprises.

They also aren’t reliant on external investors but rather lend off their balance sheet with rates starting from the mid-8s on a 12-month term, alongside a 1% net establishment fee.

What’s their credit policy like?

For property developers considering LSH Credit, there are some key criteria to keep in mind. 

Firstly, they are generally willing to finance up to 65% LVR in the metropolitan areas of Melbourne, Sydney, and Brisbane. While they steer clear of construction and land bank deals, they will consider cash outs, refinances, residual stock, and acquisitions.

To apply, you’ll need a profit and loss statement and balance sheet spanning two years for profiling purposes. They also want to see a six-month business transaction statement to ensure ongoing business activity.

A streamlined application and assessment process

LSH Credit believes in upfront due diligence to minimise surprises. 

Term sheets are typically issued within 1-3 days, and formal approvals range from 1-5 days, depending on the deal’s size. 

Their assessment process focuses on the sponsor’s assets and background, the security’s location and quality, and the exit strategy for repayment.

Why choose LSH Credit?

Three key reasons stand out. 

LSH Credit:

  • Offer transparency and simplicity in their lending approach
  • Assess your application on its merits, rather than a one-size-fits-all approach.
  • Work closely with their existing borrowers, so can provide ongoing support throughout your property development journey

LSH Credit is a lender that ticks a lot of boxes; however, they may not be the right fit for you as a borrower. CPC has access to many lenders like LSH, so we can find you the right lender for your situation. 

Looking to get your property development project off the ground? CPC works with a broad range of lenders so can help you overcome any funding challenges. To confidentially discuss your options, contact David Lovato on +61 434 932 634 or [email protected].

 

Lender in focus: Jadig Finance

 

Written by David Lovato – CPC Development Lending Solutions

September 2023

As property developers, choosing the right financial partner can mean the difference between your project’s success or its stagnation. But navigating Australia’s crowded finance marketplace can be a complex and overwhelming task.  

To help, CPC Development Lending Solutions is profiling some of our lenders so you can understand what each brings to the table.

First up is Jadig Finance, a lender that specialises in financing projects below the $20 million mark. This includes everything from senior and mezzanine debt for site and development finance to property-backed investment lending. 

What makes them different?

As a family business, Jadig Finance puts a strong emphasis on transparency and building lasting relationships. So instead of viewing your project as a mere business deal, they are genuinely invested in your project’s success, setting the stage for a mutually beneficial partnership that delivers solid results.

This is a lender that, quite literally, takes business personally. 

As a result, they pride themselves on their flexible, pragmatic approach, which means they can offer bespoke funding solutions even in challenging scenarios. Thanks to their asset-class agnostic stance, they’re open to a broader range of projects, assessing each on its merits, rather than checklist criteria.

Speaking of which, Jadig Finance offers a credit policy that’s both transparent and respectful. Their experience-driven approach cultivates partnerships built on trust. 

Finally, we all know that, in property development, time is money. Recognising this, Jadig Finance has streamlined its assessment process, with most applications turnaround within 48 hours.

A final word

While Jadig Finance offers a compelling proposition, they won’t be the perfect fit for everyone as different clients have different needs. As such, there are scenarios where other lenders may be more appropriate. This is why CPC works with a broad range of lenders as it means our clients have access to lending solutions tailored to their unique requirements and project specifications.

To confidentially discuss your options, contact David Lovato on +61 434 932 634 or [email protected].

 

How property developers can avoid collaborating with builders on the brink

 

Written by David Lovato – CPC Development Lending Solutions

August 2023

 

Recent statistics from ASIC, the financial services regulator, show over 2000 Australian construction companies went into liquidation since mid-2021. That averages out to more than two companies every day. 

And it’s not just fledgling enterprises either, with notable names like Porter Davis Homes Group, Probuild, ABG Group and Condev among the casualties.

Australian Constructors Association (ACA) chief executive Jon Davis said the industry was in deep trouble, with firms entering administration at more than twice the rate of other sectors. 

“Building sector profit margins have fallen from around 3% to below 1% and liquidity has collapsed from 15% to below 5%. Most concerningly, over half of all large builders are now carrying current liabilities in excess of current assets— a technical definition of insolvency,” he said. 

“The building industry is a textbook example of market failure.”

Given this, you might be wondering if there is anything you can do to avoid working with a builder who might go bust during the project. 

Well, while nothing is ever guaranteed, there are steps you can take to minimise risk

1. Do your due diligence

Before signing on any dotted line, conduct a thorough background check on the potential builder. Investigate their trading history, past projects, and any media coverage. A simple online search can reveal a wealth of information, including any red flags or controversies. 

2. Run credit checks 

You can investigate a builder’s payment history with suppliers and subcontractors by getting a report from credit agencies, such as Equifax, illion and Experian. Delayed payments or defaults are often an early warning sign of financial trouble.

3. Talk to previous clients

Nothing beats talking to others who’ve worked with the builder. Ask them candidly about their experience. Were there any delays? How did they handle problems? Would they hire them again? This can give you a real insight into how the builder operates.

4. Avoid lowest-bid temptations

While it can be tempting to choose the cheapest bid, this might mean compromising on quality and reliability. Balance the cost with other factors like experience, reputation, and financial stability.

5. Assess their supply chain strength

 A builder’s financial health isn’t only about their immediate finances. If they’re reliant on a supply chain that’s struggling, it could affect your project. Ask about their suppliers, their payment terms, and any contingencies in place for disruptions.

6. Understand their business model 

A builder’s business model should be sustainable and not overly reliant on one or two large projects or clients. Diversification in projects and clientele often indicates a more resilient business.

7. Don’t pay upfront

To reduce financial risks, set clear milestones for payments rather than large upfront sums. This ensures you’re paying for completed work and provides an incentive for the builder to maintain timelines.

8. Build long-term relationships

Foster long-term relationships with trusted builders. As you collaborate on multiple projects, you’ll get a better sense of their reliability and financial stability. This familiarity can act as a buffer against potential risks.

9. Consult with experts 

Last, but by no means least, engage with professionals who have their finger on the pulse. As a broker specialising in developer loans, Crowd Property Capital can offer you valuable advice on financial risk management.

CPC Development Lending Solutions can help you get your next project funded. To confidentially discuss your options, contact David Lovato on +61 434 932 634 or [email protected].

 

Fast-tracked planning approval pathways in NSW

 

Written by David Lovato – CPC Development Lending Solutions

July 2023

 

Greater Sydney is in the midst of a housing supply crisis, with the city facing a projected shortfall of 134,000 dwellings over the next five years. 

To tackle this, the NSW government is reforming the planning system so that it incentivises developers to build affordable, high-density housing.

Under the changes, housing developments valued at more than $75m, which include a minimum of 15% affordable housing, will gain access to a new State Significant Development pathway, meaning planning decisions will be made faster.

Developers will also be able to build 30% higher and add 30% to the floor space to land size ratio than local environment plans allow, as this fast-tracked planning pathway pulls the approval process out of the local council’s control.

But what about smaller projects? 

After all, getting local council planning approval for a development project can be a complicated, expensive and time-consuming process, regardless of its size, as:

  • Every council has different local planning rules and regulations
  • Every council interprets statewide planning laws in its own way

Fortunately, the Low Rise Housing Diversity Code (formerly known as the Low-Rise Medium Density Housing Code) can be used to ‘sidestep’ the local development pathway.

Here is how it works. 

A fast-track approval pathway

The Low Rise Housing Diversity Code was introduced by the state government to promote the construction of diverse and affordable housing options in low-rise residential areas.

It does this by creating a fast-track approval pathway for the following property types:

  • Dual occupancies
  • Terraces
  • Manor houses

This means that as long as the proposal complies with the State Environmental Planning Policy (Exempt and Complying Development Codes) 2008, you can receive approval in as little as 20 days, giving you planning timeframe and outcome certainty. 

What do you need to know about the code?

The code applies to eligible residential lots located in areas zoned:

  • R1 (general residential)
  • R2 (low-density Residential)
  • R3 (medium-density residential)
  • RU5 (village)

These areas generally consist of established neighbourhoods and urban environments where low-rise housing can be integrated seamlessly. 

Some exclusions do apply though, including:

  • State or locally-listed heritage items and heritage conservation areas
  • Land reserved for public purposes 
  • Environmentally sensitive areas.

Housing types under the Code

As mentioned, the Code allows for the fast-tracking of dual occupancies, terraces, and manor houses. 

Dual occupancies refer to two separate dwellings located on the same lot, that can be attached or detached. 

Terraces allow for up to three dwellings on a single lot. These dwellings must front a public road, with no other dwellings located above or below.

A manor house is a building containing between three and four dwellings that is up to two storeys in height (excluding any basement). Each dwelling is attached by a common wall or floor with at least one dwelling fully or partially located above another dwelling.

Lot sizes and development standards

To comply with the code, proposed developments need to meet the minimum lot size requirements:

  • Dual occupancy – the size of the lot being developed must meet the minimum lot size required to build a dual occupancy under the relevant council’s local environmental plan (LEP). If the LEP does not specify a minimum lot size, the Code applies a minimum 400m2 lot size.
  • Manor houses – a minimum 600m2 lot size requirement applies.
  • Terraces – the size of the lot being developed must meet the minimum lot size required to build multi-dwelling housing under the relevant council’s LEP. If the LEP does not specify a minimum lot size, the Code applies a minimum 600m2 lot size.

There are also specific criteria related to building design, setbacks, landscaping, privacy, and parking.

CPC Development Lending Solutions can help you get your next project funded. To confidentially discuss your options, contact David Lovato on +61 434 932 634 or [email protected].

 

 

Developers shelve projects as construction costs soar

 

Written by David Lovato – CPC Development Lending Solutions

June 2023

 

Another month, another 25 basis point rate hike from the Reserve Bank of Australia – with the latest move taking the official interest rate to an 11-year high of 4.10%.

It’s not just homeowners who are feeling the pain from higher interest rates; property developers and homebuilders are too, leading to a massive slowdown in construction levels.   

For instance, Australian Bureau of Statistics data showed building approvals hit an 11-year low in April, after total dwelling approvals fell 8.1% over the month, following a 1.0% drop in March. 

Multi-unit approvals fell to just 3,469 – 35.4% fewer than the same time last year.  

The slowing rate of construction comes at a time when many capital cities are already grappling with a housing supply crunch that’s driven vacancy rates close to record lows. 

It gets worse. 

That’s because the RBA’s interest rate rises haven’t happened in isolation; rather, they’ve occurred amid a 30% surge in residential construction costs during the two years to March 2023, according to KPMG Australia. 

This, in turn, has led to an increasing number of projects being put on hold, despite already gaining planning approval.

KPMG’s analysis found almost 16,400 dwellings in New South Wales were approved but not yet commenced by the end of March, up from 13,800 at the same time last year.

As the graph below shows, the last time there was such a vast backlog of paused construction projects with approvals was in 2019. However, back then, developers in Sydney were hitting the brakes due to a historically high vacancy rate of 3.5%. 

By contrast, Sydney’s vacancy rate was just 1.1% in May, according to Domain. 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Similarly, in Victoria, almost 10,500 dwellings were approved but construction had not yet commenced by the end of March, the highest number of stalled projects since December 2017.

KPMG urban economist, Terry Rawnsley, said around three-quarters of the not-yet-commenced dwellings in New South Wales and Victoria were slated to be apartments or townhouses.

“Both Victoria and New South Wales have increased demand for new dwelling approvals, but dwellings are far from materialising, due to significantly higher input costs,” he said. 

Managing cost overruns in development finance 

There’s no doubt skyrocketing prices, as well as material and labour shortages, are making the development environment particularly challenging. 

So you may be wondering if there’s anything you can do to avoid costs spiralling out of control on your project.

Well, in many cases, prevention is better than cure. 

That means: 

  • Estimating costs accurately: Don’t be tempted to use a one-size-fits-all approach. Rather, do your due diligence in the planning phase to create a realistic budget.
  • Planning for surprises: Identify and assess risks that could lead to cost overruns, and develop a risk management plan with contingency funds.
  • Clearly defining project scope: Changes in project scope are a common cause of cost overruns. So use a robust change order control process that includes assessing the impact of proposed changes on cost, schedule, and quality before approving them. 
  • Tracking your budget: Monitor your project progress and costs regularly. This includes comparing actual costs against the budget, tracking project milestones, and promptly addressing any deviations.
  • Contingency planning: Allocating contingency funds in the project budget to account for unforeseen expenses. The contingency amount should be based on a realistic assessment of potential risks and should be managed carefully throughout the project.

Crowd Property Capital is a property development finance specialist. We help property developers overcome their funding challenges by sourcing loans for land, construction and residual stock. Contact us at [email protected] or fill in this form.

 

Resetting the NSW building industry

 

Written by David Lovato – CPC Development Lending Solutions

June 2023

 

The New South Wales building regulation landscape significantly changed when David Chandler was appointed as the state’s inaugural building commissioner in 2019. 

Mr Chandler was tasked with improving the quality of residential apartment buildings and restoring public trust in the industry following the Opal Tower and Mascot Towers incidents. 

This is being achieved through the Construct NSW strategy, which focuses on six key areas for reform:

  • Protecting homebuyers from defective building work through legislation
  • Developing a rating system to make it easier for homeowners to identify trustworthy practitioners 
  • Upskilling the building and construction industry
  • Strengthening standard contracts used in the industry by clearly outlining the roles and responsibilities of all practitioners
  • Using digital platforms to improve transparency and communications between the government, the building sector and the community
  • Conducting research and collecting data about the state of the industry, its capabilities and areas for change

Key reforms so far

In 2020, two major laws were passed by the state parliament:

The RAB Act gives the NSW Building Commissioner sweeping powers to enter a construction site and issue a:

  • Prohibition order: This prohibits the issue of an occupation certificate and/or the registration of a strata plan for a residential apartment building
  • Stop work order: This prevents a developer from continuing work
  • Building work rectification order: This requires a developer to carry out or refrain from carrying out building work to eliminate, minimise or remediate a serious or potential serious defect

Meanwhile, the DB Act requires designers, engineers and builders working on new residential apartment buildings in NSW to declare the compliance of their work with the Building Code of Australia. In doing so, it imposes a duty of care meaning that current and future owners can make a claim against them if they act negligently. 

When the RAB and the DB Act came into effect in 2020 they applied only for apartment buildings. However, from 1 July 2023, both Acts are being bolstered to include other types of buildings where people live and work, such as shared accommodation, hostels, boarding houses and residential aged care.

The NSW government also released the Independent Construction Industry Rating Tool (iCIRT). This uses a five-star system to rate builders on their apartment build to help homebuyers find a “trustworthy” developer.

Reforms in the pipeline 

It’s no secret that a perfect storm is wreaking havoc on Australia’s construction industry with companies failing amid challenging conditions. 

As such, the next phase of the NSW building reforms will look at reducing insolvency risks and improving outcomes for consumers by:

  • Establishing clear lines of responsibility and end-to-end accountability – for example, by developing new contract terms where developers may indemnify consultants and builders for some work done by prior developers and others to ensure clear continuing accountability.
  • Promoting active project governance, monitoring and risk identification
  • Addressing insolvency risks through proper financial due diligence 
  • Requiring completion undertakings and securities in most of these procurement models from financiers, developers, and/or receiver managers.

Crowd Property Capital is a property development finance specialist. We help property developers overcome their funding challenges by sourcing loans for land, construction and residual stock. Contact us at [email protected] or fill in this form.