Applying to be part of Project Intervene to fix serious defects

If your building is eligible, we will collect available documentation and arrange for an independent inspection of your building to be carried out with the appropriate specialists.

The inspection is a dip test (that is, non destructive), however it does aim to capture the significant serious defects. If further serious defects are discovered later, they can be added to the list, but it is expected that most issues are identified in these earlier stages. The inspectors will also review all material including any earlier reports provided.  

The preliminary findings of the inspection will be shared with the developer for feedback. It is not shared with the owners corporation and cannot be used by the owners corporation even if the undertaking does not eventuate. 

Timing: 6 weeks from the inspection to issuing preliminary findings.  
Who: The Department of Customer Service (the 'Department') and building consultant(s). The strata committee or strata manager will need to allow access to the building. 

a) We issue preliminary findings of an inspection

We share the preliminary findings of the inspection with the developer.

b) The developer may sign an Undertaking Process Deed Poll 

Based on the preliminary findings, the developer may agree to enter a process where we negotiate an Undertaking.  At this stage, the developer signs the first of two Deed Polls, the Undertaking Process Deed Poll. 

c) The Undertaking Manager is appointed

The signing of an Undertaking Process Deed Poll triggers the appointment of an Undertaking Manager. Their role is to work with the developer to finalise the list of serious defects to be remediated and the expected timeline for remediation work.

Timing: 1-2 weeks to appoint the Undertaking Manager and 12-16 weeks to finalise the serious defects list (however this may take longer depending on nature of the defects and extent of investigations required).

d) The developer offers the Secretary of the Department of Customer Service an Undertaking

Once the Undertaking Manager finalises the list of serious defects in consultation with the developer, and taking account of the owners corporation’s views, the developer provides an Undertaking to the department.  

The Undertaking sets out: 

• the process for rectification of serious defects (or monitoring of future defects, if any); 

• requirement for regulated designs and declaration; 

• the role of the Undertaking Manager, Superintendent and Owners Corporation; 

• insurance, costs, and indemnity requirements; 

• dispute resolution processes; 

• pro forma deed polls from and in favour of the Owners Corporation. 

A security deposit may be agreed upon as part of the Undertaking. 

Timing: 4 weeks to negotiate and agree the final Undertaking.
Who: The Department, developer, and (if appointed) the Undertaking Manager.

e) Final Undertaking signed by the developer

Once the Undertaking is final, the developer signs the Deed Poll and offers it to the Secretary of the Department of Customer Service.

If the terms are agreed, the Secretary will accept the Undertaking. The Undertaking is an agreement between the Secretary and the developer for the benefit of the owners corporation.  

Timing: 2-3 weeks.
Who: The developer and the Department.

f) Owners corporation agrees to the Undertaking

To get the benefit of the Undertaking, the owners corporation must agree to it by vote at a general meeting and sign the Owners Corporation Deed Poll.

Timing: 6 weeks.

Once it is agreed, the owners corporation signs the Owners Corporation Deed Poll.  A copy of this Deed Poll is provided to the developer so each party has a complete set of documents.

If an Undertaking cannot be achieved we may issue a Building Work Rectification Order

If an undertaking cannot be achieved (for example the developer or owners corporation cannot agree to a list of serious defects or terms of the undertaking cannot be agreed), we may issue a final building work rectification order.

The building work rectification order is internally approved before issuing it to the developer, the owners corporation and publishing it on Fair Trading.

Timing: 10 weeks to issue and developer to provide submissions (however this can be extended further by request by the developer). 
Who: The Department, developer, Undertaking Manager, strata committee and the owners corporation (vote required).

Before any building work can start, the developer (or builder) must ensure there are regulated designs for the remediation work (where necessary). The designs must be declared by a registered design practitioner. 

A registered building practitioner must enter the declared regulated designs into the NSW Planning Portal. 

The building practitioner must carry out works in accordance with the declared designs.

Timing: Varies and depends on the complexity of the work and the availability of registered design practitioners.
Who: The developer, registered design practitioner and registered building practitioner.

A Superintendent is jointly appointed by the developer and the Department to oversee that the building work is completed in a compliant manner. They are independent of the developer. The developer covers the cost of the appointment of a Superintendent.

You should continue to liaise with the Undertaking Manager or Superintendent if you have any questions about the program and delivery of remedial works. 

Who: The developer, Department and Superintendent.

As soon as the designs are declared and uploaded on the NSW Planning Portal by the building practitioner, the works can commence. The owners corporation will need to provide access to the building to ensure timely completion of remedial building works.

The work can be undertaken by the original builder and by the original tradespeople involved, however it does not have to be. 

Timing: Up to 12 months (sometimes longer) – the time varies considerably according to what remediation work is required and the availability of design practitioners, a building practitioner, and related tradespeople. In some cases, the time may be extended if, in the opinion of the Undertaking Manager, a time extension is warranted. 
Who: The developer, builder, contractors, Undertaking Manager and Superintendent  

At the end of building work, the building practitioner will be required to declare the works are completed in accordance with the designs and entered into the NSW Planning Portal.

The Superintendent will sign-off to confirm the works are completed and meets all relevant standards. The Undertaking Manager will review and provide sign-off of the completion of works

If a bank guarantee has been offered it will remain in place until the expiry period. If no claim is made it will expire.

Who: The developer, Superintendent, Department and owners corporation. 

Serious defects may relate to:

• Fire penetration 
• Fire pump room
• Fire stairs 
• Fire doors
• Substation

Serious defects may relate to:

• Planter box 
• Bathroom 
• Balcony 
• Roof

Serious defects may relate to:

• Cracking in slab 
• Expansion joints 
• Ensuring built according to the designs (for example, columns, walls) 
• Honeycombing

Serious defects may relate to:

• Cladding / enclosure 
• Moisture management 
• Suitable material

Serious defects may relate to:

• Mechanical ventilation 
• Electrical 
• Plumbing / drainage 
• Hydraulic 
• Lifts
• Services cupboard 

Project Intervene was established as a full program in November 2022. Our approach of using an Undertaking to get serious defects fixed is new one.

However, the early indications seem to be that insurers, if properly briefed, can be satisfied when a developer has signed an Undertaking because there is a clearly defined process for getting the serious defects fixed in a compliant manner and in a clear timeframe.

By contrast, when serious defects are not fixed, insurers can refuse to insure a building with serious defects or increase insurance premiums to cover the increased risk.  

You should seek your own advice. Check with your building insurer and consider a quote from alternative insurers. 

Project Intervene uses the powers under the RAB Act which allow us to pursue the developer and builder to fix the serious defects. This means the developer (or the builder) must still be in business. Where the developer and builder are de-registered or wound up, we are unable to accept a building into Project Intervene.

In the situation where the developer or builder are no longer trading, we are often limited in what action we can take. However, if there is a parent company still trading, you should still register with Project Intervene.

While it is a challenging situation for us to pursue a developer once they have de-registered, and we may not be successful, we will approach the parent company to get the serious defects in your building fixed.  We can also refer any individuals or director to the relevant authorities. We may also consider a review of any licences they hold in New South Wales.  

You should register your building through the process outlined above through Fair Trading. If your building is eligible for Project Intervene, we will contact, you.

Project Intervene uses the powers of the RAB Act to conduct inspections, issue directions or orders or accept an undertaking. These actions can occur in parallel to any legal proceedings.

We can take action regardless of whether the owners corporation has commenced legal proceedings about the serious defects against the developer or builder. However, once the undertaking is signed by the developer, the owners corporation must choose its pathway to get defects fixed – litigation or Project Intervene. It is likely both pathways will relate to the same set of serious defects.

Project Intervene is using compliance powers to have the serious defects fixed, which is ultimately for the benefit of the owners corporation. This process requires the owners corporation to pass a motion to give access for the remediation work to be done and accept other aspects of the process which are designed to have the serious defects fixed properly.

Unlike legal proceedings, the undertaking does not involve payment of damages to the owners corporation. It does, however, include a time frame by which the serious defects are to be fixed. The undertaking does not require legal or expert fees to be paid by the owners corporation.