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

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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. 

How property developers can avoid collaborating with builders on the brink

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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

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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

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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.

 

A tale of 3 cities – Sydneys winners and losers in the GSC’s visionary plans

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October 2017  Article by Build Sydney

 

This week the government announced a 3 city plan. These 3 cities will be fully functioning cities connected by major transport & infrastructure projects by the year 2056. These cities include:

  • The Harbour City (focused around the Sydney CBD, North Sydney, Chatswood, Macquarie Park, Sydney Airport & Port Botany)
  • The Central City (Focused around the Parramatta CBD, Sydney Olympic Park, Norwest, Rhodes & the Parramatta River)
  • The Western City (Focused around the Badgerys Creek Aerotropolis future development, Liverpool, Penrith, Campbelltown, Narellan & Leppington)

As outlined by the Greater Sydney Commissions map of a future Sydney, It clearly shows which areas are going to directly benefit via mass-transit projects, highways & their given timeline for the project. While some areas such as those around Badgerys Creek are going to benefit greatly, areas with current social-economic disadvantages & getting the short end of the stick, particularly around the Fairfield, Liverpool & Blacktown Local Government Areas which have some of the highest disadvantaged suburbs in NSW.

While it could be argued that having a Western City built to the west of them would benefit their job situation, it is quite clear that the airport itself is further away from the Sydney CBD both in distance & in the time taken to get there by current public transport.

To the contrary, the future looks great for the Greater Parramatta region which is set to benefit from a variety of infrastructure which will cement its place as Sydney 2nd CBD & facilitating the plan clearly shows Parramatta becoming the next central with the amount of public transport which will come through the suburb. Already NSW’s 4th business station, if trends continue then it should be well on its way to becoming the 2nd busiest by the time the Greater Sydney Commission’s plan is realized in 2056.

Future links to cement Parramatta as the New Central Include:

  • The Parramatta Light Rail Stage 1 & Stage 2
  • Westconnex
  • Sydney Metro West
  • A Future mass-transit link to Badgerys Creek
  • A future mass-transit link to Kogarah via Bankstown
  • A future mass-transit link to Epping
  • A visionary mass-transit link to Norwest
  • A Future Ring-road around the Parramatta region which consists of the Parramatta CBD, Westmead, Rydalmere, Camilia, Rosehill & North Parramatta.

The Harbour city which consists of the Sydney CBD and surrounding area’s looks to further cement its place as the financial capital of Australia with a focus on finance, fin-tech & innovation. It looks to strengthen in the global economic corridor which runs from Sydney airport & Port Botany through Green Square then onto the innovations hubs of Redfern & the Bays precinct then importantly into the Sydney CBD which from there the corridor continues over the harbour to North Sydney, St Leonards, Chatswood & finally to Macquarie Park.

A significant amount of density is set to rise around Mascot & Green Square, as well as around Maroubra & Eastgardens. There will also be a line of major infrastructure projects which include:

  • A future mass transit link from the Sydney CBD through the Eastern Suburbs onto La Perouse. This plan should facilitate higher densities within the Eastern Suburbs.
  • The Beaches Link motorway
  • The Western Harbour Tunnel
  • The Sydney CBD to Eastern Suburbs Light Rail
  • A Future Bays Precinct to the Sydney CBD Light Rail

While this plan is solid, it will clearly lead to a disadvantage for people who live in the Western City & commute to the Harbour City and vice-versa. In a perfect world the “30-minute city” as it has been dubbed would be just that but in a world of high property prices pushing commuters further out away from the major CBD & a majority of the high-paying technical jobs being located in the Sydney CBD, it could actually make the situation worse, however, its greater to see planning & transport come together for the first time in NSW to promote a proper 40-year vision for Sydney.

In order for a plan like this to work, it must be stressed that infrastructure & transport be put in before people & businesses move in. An example of the chaos this can cause is Wentworth Point being the most-dense suburb in NSW yet having one road (Hill Road) in & out of the suburb where only recently was the Bennelong Bridge opened, however, the point stands that infrastructure services & transport must be put in before any major developments & population spikes occur.

For a summary of the report click here 

 

Home Values Continue to Rise in Australia CoreLogic Jan 2017

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January 2017

 

The hedonic home value index released by CoreLogic (Australia’s leading property data and analytic company) has been released for January 2017, in summary:

  • Best performing capital city: Hobart +5.8%
  • Weakest performing capital city: Canberra +0.1%
  • Highest rental yields: Hobart & Canberra houses with gross rental yield of 5.0% and Hobart Units at 5.8%
  • Lowest rental yields: Melbourne houses with gross rental yield of 2.7% and Darwin units at 3.4%
  • Most expensive city: Sydney with a median dwelling price of $850,000
  • Most affordable city: Hobart with a median dwelling price of $366,000

For the full report on the above statistics click here

CPC Shark Bait – The real Shark Tank Experience

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Shark Tank

Late last year when I was up super early with my newborn I saw an ad for Shark Tank auditions on Channel 10.  Having just come up with the CPC business idea and website I thought what a great forum to launch this potential business into the world. So I filled in the forms, went through the audition process and got selected.

Fast forward to the day of filming I got the opportunity and went into the tank head first only to get eaten alive on the perceived investment risks being far greater than the offered returns. They initially liked the pitch but then it shifted and came across as preying on the little guy investors, the amount of editing and dramatisation assured the villain theme.

They then hated the business model as it was looking to use their reputation (i thought that was the reason people went on?) but apart from the grilling and the amount of editing I can honestly say the experience was amazing and well worth it. Not only have I tweaked the CPC business model but it has made me more hungry to succeed so I can prove the Sharks wrong.

In hindsight the CPC startup business was to early stage for the sharks, they want a tangible sure thing that’s already making money and they don’t want to work hard for it, why should they – they’ve already made their money.  Only a small lucky few startups get the funds most get ripped into for over valuing their business, chewed up and spat out for entertainment value.

I don’t want to discourage anyone from going on the show as the exposure you’ll get is huge but you must be prepared for failure. As Mark Bouris wrote in his article last year (click here to read his full article about Shark Tank)  – Australia needs more Entrepreneurs people willing to get up off their backsides and give it a good old Aussie crack. I believe the show needs to provide more to the participants in the form of genuine on and off camera business feedback but alas this doesn’t really make good telly.

I’m lucky  in a way that I will see this as a great talking point with colleagues friends and family, nothing is as good as providing  a self-deprecating source of humour. Time will tell if the exposure was worth it for the CPC business but one thing for sure I’m not going to die wondering.

 

Watch Dave on CPC on Shark Tank – Ten Play (approx 24th minute)

https://tenplay.com.au/channel-ten/shark-tank