Baker, Michael --- "Deliberative Development In Australia: A Legal Framework And Financial Challenges" [2022] UNSWLawJlStuS 2; (2022) UNSWLJ Student Series No 22-2

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DELIBERATIVE DEVELOPMENT IN AUSTRALIA: A LEGAL FRAMEWORK AND FINANCIAL CHALLENGES

MICHAEL BAKER

I INTRODUCTION

In this essay, following an evaluation of some of the claimed benefits of deliberative development, I demonstrate how strata and community title legislation available in all states and territories in Australia could facilitate its uptake. Then, using mainstream analysis of development finance I show how financial barriers prevent deliberative development’s wider adoption by consumers in Australia and evaluate two proposed solutions responsive to these barriers.

II THE BENEFITS OF DELIBERATIVE DEVELOPMENT

A Defining Deliberative Development

‘Deliberative development’ is the Australian descriptor for a model of housing provision and ownership in which a group of ‘intending owner-occupiers’ collectively develop their own multi-unit apartment scheme – without resort to a commercial developer.^[1] Relatively rare in the Australian housing market, they are more common in European countries where speculative ‘volume production’ is not the norm.^[2] The widespread adoption of the model as an urban development strategy in Germany, where they are known as ‘baugruppen’ (‘building groups’), has attracted the particular attention of Australian housing academics and building professionals. These advocates argue the model should be used more widely in Australia to improve affordability and design outcomes in medium-density housing.^[3]

While the definition I have provided above is intended to be exhaustive, deliberative development is used to describe a variety of different projects – each with their own characteristics.^[4] Some scholars emphasise the collaborative aspect of deliberative development as its defining feature,^[5] but the model is ultimately pragmatic, with projects existing on a continuum of ‘organic’ collaboration at one end, and professional assistance at the other.^[6]

At their most organic a pre-existing group of friends deliver a shared vision of housing together.^[7] The group collectively perform the various roles involved in the development process such as obtaining finance, purchasing land and contracting with building professionals. Maintenance of relationships within the group and a desire to share in a particular type of housing is a key driver of the project.^[8]

At the other end of the spectrum, are ‘professionally led’ projects.^[9] An individual, usually a building professional, identifies a site and advertises for others to join them in a building project. There is limited social motive, and the project is driven by a desire to build housing at a reduced cost with a greater scope for customisation.^[10] Deliberative development is therefore perhaps better defined by the absence of the speculative developer and their accompanying profit motive, rather than solely by collaboration.

B The Benefits of Deliberative Development

Qualitative analysis of baugruppen in Freiburg, Germany, suggests that the collaborative nature of the development process and the absence of a speculative developer, yields significant benefits for the housing consumer and the wider community.^[11] Both Australian and German literature claim that the apartments produced in a deliberative development are more affordable and better suited to the needs of housing consumers, as well as more environmentally sustainable.^[12] There are also intangible social effects within the group, and for host neighbourhoods.^[13]

1 Affordability

Cost savings in an apartment delivered using the deliberative development model in Germany are commonly cited as being 25 per cent relative to a traditional development.^[14] The aforementioned analysis from Freiburg shows that some savings accrue from the ‘do-it-yourself’ nature of the build process. A group initiating a deliberative development project will take on various tasks traditionally fulfilled by commercial developers such as contracting with an architect or engaging with local authorities regarding planning approval.^[15] The greater the internalisation of tasks within the group, the greater the potential for cost savings. It follows that projects that are professionally-led will produce lower cost savings.

However, affordability claims made by Australian authors, based on research from Germany,^[16] do not appear to account for contextual factors peculiar to the German housing market.^[17] While some cost savings in the German research can be attributed to the process of internalising managerial tasks described, other cost savings can be attributed to government policy settings aimed at addressing historically low home ownership rates in the absence of traditional developers.^[18] In particular, access to public land, government funding, and the waiving of taxes and fees are critical.^[19] In the example of Freiburg, plots of land were disposed of by the government at a fixed price with a competitive tender process set up specifically for deliberative development groups, freezing the value of the land.^[20] In addition, some relief from taxes on land acquisition and other transactional charges were granted.^[21]

Despite the absence of empirical data and the author’s scepticism of affordability claims based on German qualitative data, there remain some cost savings in the deliberative development model that are transposable to the Australian context. The existence of a group of willing buyers who initiate the project avoids the need for a pre-sales campaign, reducing marketing costs by up to 10 per cent.^[22] The absence of a developer’s profit also results in cost savings. As Sharam et al point out, in a traditional development any cost savings achieved through innovations in construction techniques, obtaining a lower price for inputs (e.g. labour or materials), and relaxation of planning regulation accrue to the developer as profit.^[23] In a deliberative model, they flow directly to the consumer.

2 Customisation, Quality and Innovation

The affordability benefits of deliberative development should also be considered in light of the quality of the housing produced and the extent to which it meets consumer needs. An off-the-plan apartment is designed primarily for investors seeking rental yield in the short term (usually to cover interest payments mortgage), and a capital gain in the long term.^[24] Purchasers are offered the promise of an apartment, on a take-it-or-leave-it basis. The final product rarely reflects an occupant’s true design preferences or their expectations as to quality.^[25] Medium to high density housing supplied in major urban centres in Australia also tends to reflect development financiers’ appetite for risk,^[26] and as a result apartments are at best conservative estimations of prevailing design trends, or, at worst, generic ‘boxes’ in the sky.^[27]

Deliberative development provides consumers with scope to directly express their collective preferences in the design process,^[28] and are therefore a more accurate aggregator of consumer demand.^[29] An illustrative example of how consumer preferences are expressed in practice is provided by the Commons rooftop laundry and garden. A traditional developer may make the conservative assumption that consumers aren’t willing to purchase apartments without a laundry space located within their individual lot. The Commons, on the other hand, can pursue a collectively expressed preference for a common roof-top laundry that saves residents the cost individual facilities and also breeds social interaction between residents. Indeed, shared spaces such as continuous balconies are a common example of a preference expressed in German deliberative developments, that are unlikely to be found in traditional developments.

[30]Similarly illustrative are developments where group members have expressed[31] collective ambition to achieve better environmental performance in their housing.³⁰ Australian take-up of voluntary energy efficiency performance standards in apartments such as Passivhaus is presently low or non-existent.³¹ Deliberative development provides an opportunity for Australian apartment dwellers to drive the adoption of a more ambitious [32]andard than what traditional developers are presently willing to offer. Once such standards are shown to be successful in a deliberative model, it is suggested they eventually trickle into more traditional housing products.³²

3 Social Effects

A strong rationale for deliberative development, shown in qualitative data, is its ‘inherently sociable approach to housing production’.^[33] Social bonds between residents are developed both through the collaborative design and build process, and during occupancy.^[34] Given all apartments will be owner-occupied and likely feature significant common facilities, residents tend to approach each other with co-operation and the creation of supportive relationships in mind. This claim is echoed by Australian proponents of deliberative development projects, who lament the anonymity of traditional apartment developments.^[35]

Residents of deliberative development are also claimed to be more likely to participate in, and form strong attachment to the local community.^[36] This claim deserves some scepticism as it is likely that deliberative developments self-select for people who are already community-minded, irrespective of their housing choice. On the other hand, the high rate of owner-occupancy in deliberative development projects are conducive to a more stable neighbourhood with permanence providing a greater opportunity for fostering a sense of loyalty to a local community.

It also should be noted that Hamiduddin and Gallent argue that because groups tend to self-select for individuals with high social capital, deliberative developments are less socially inclusive.^[37] While this claim is almost certainly true relative to some housing choices, such as apartments in the private rental market, deliberative development is likely more inclusive relative to other housing options such as the free-standing home. In this way, deliberative development is better thought of as creating a new segment in the apartment market, providing consumers with greater and more diverse choice in apartment product.

IV STRATA AS A LEGAL FRAMEWORK FOR DELIBERATIVE DEVELOPMENT

As has been identified, many of the benefits of a deliberative development are a function of collaboration between group members in the design and the realisation of a mix of high-quality shared and private living spaces. Effective collaboration and sharing space requires legal frameworks that protect and mediate between group and individual interests. Despite the insistence of some Australian proponents that the design of such frameworks pose a challenge for prospective deliberative development projects, ^[38] developing and occupying land with a mix of individually owned and collectively owned space is not novel. All Australian jurisdictions have strata and community title legislation that provide for precisely such developments.^[39] Indeed, German literature seems to presuppose the equivalent German legislation – the Wohnungseigentumsgesetzt – as the most appropriate legal structure for deliberative development.^[40] In this section I will briefly evaluate the extent to which Australian strata law provides for key aspects of deliberative development including by delineating between common and private property, providing for effective management of common property through bodies corporate, and mandating particular environmental standards.

A Delineation of Common and Private Property

It will be relatively straightforward for a group initiating a deliberative development to create a company for the purposes of developing a strata scheme. Near completion of the project, a strata plan of subdivision will be drawn up by a surveyor marking boundaries between common property and individual lots, ^[41] and defining the building’s relationship to the boundaries of the land.^[42] Upon registration of the plans with the respective land titles office, freehold Torrens title is created which can then be transferred from the company as ‘original owner’ of the parcel to group members according to their agreed unit entitlement.^[43]

The registered strata plan and relevant legislative definitions would militate against any dispute between occupants over what constitutes common or private property in the building once complete. However, disputes could arise prior to the registration of the plan. Disputes noted in the literature include disagreement about allocation of apartments among group members (who should get a prized top floor apartment); and dealing with the exit of a group member prior to the completion of the project and the reallocation of costs amongst remaining members.^[44] Such disputes are unlikely to be beyond company law which could provide for a dispute mechanism in the articles of association or in other agreements such as a shareholders agreement.^[45]

B Managing Common Property

Extensive shared living spaces and common facilities in deliberative developments can be effectively maintained by bodies corporate which have legislatively defined powers and duties to manage common property.^[46] By way of example, a common rooftop laundry of the kind located in the Commons development will require regular maintenance and cleaning. The body corporate, that comes into existence upon registration of the strata plan and comprises all lot owners, must manage and maintain the common rooftop laundry, and levy owners accordingly to fund such maintenance.^[47]

Peaceful shared use of the common laundry is also likely to require rules that prohibit certain conduct. For example, residents of top floor apartments might be concerned about the noise disturbance caused by operating a washing machine during certain hours. From the time the strata plan is registered, or at any time in the life of the scheme, by-laws can be drafted to restrict the hours of use of the rooftop laundry.^[48] The power to make by-laws is broad and limited only by a prohibition on rules that are harsh, unconscionable or oppressive.^[49] It is even possible that a by-law could mandate the use of a type of environmentally-friendly laundry detergent.

C Environmental Standards

Aside from Victoria, bodies corporate in all Australian states and territories have a blanket power to create by-laws, not just for common property, but for the ‘use or enjoyment’ of private lot property.^[50] This is potentially quite useful for bodies corporate in deliberative developments that wish to achieve particular environmental goals. For example, a by-law could be drafted to mandate the use of certain energy-efficient appliances or impose a requirement that energy efficient windows in need of repair be replaced with windows of similar standard (whether or not they are located on common property). A further rule could require that all owners report key energy, heating and cooling data from their units so as to monitor the energy performance of the building as a whole.^[51]

D A Relevant Limitation

There is one highly-relevant limitation on the otherwise broad scope of power to make by-laws in deliberative development schemes structured as strata: the ban on by-laws that restrict transfer, leasing or mortgaging of lots.^[52] This limitation will become an issue in a deliberative development where an original group of scheme owners might wish to prevent one of their number from selling their lot to a particular person who does not share the same preferences for communal living, or is otherwise not likeminded. Potential deliberative developers that would wish to impose such restrictions would be better advised to pursue a company title scheme – which brings with its own limitations in terms of attracting finance.^[53]

The ban on by-laws that restrict transfer seems also to arise as an issue in relation to the widely-acclaimed Nightingale housing developments in Victoria. Nightingale housing is a broadly deliberative model developed by the architect-proponents of the Commons.^[54] Included in the ‘Nightingale principles’ that are said to govern their developments is a principle that purports to restrict (1) the maximum resale price of an individual lot in a Nightingale development; and, (2) the persons to whom the property must be sold to approved persons on a register maintained by Nightingale.^[55] This is done to ‘de-commodify’ the housing, ensuring the continued affordability of Nightingale apartments by passing on the costs savings of the deliberative model from original owners of an apartment through to subsequent owners and preventing attempts to make capital gains.^[56] The restriction on transfer is described as a ‘caveat’ on their website, but a search of registered titles for two Nightingale developments in Victoria revealed no such caveats.

If there is indeed a by-law in a Nightingale development to the purported effect described on the website, it is almost certainly unenforceable. While Victorian strata legislation provides no express rule restricting transfer, it does provide ‘shopping list’ of matters about which bodies corporate can make by-laws in Schedule 1 of the Act – which are to be construed narrowly.^[57] A power to make laws in relation to transfer or other dealings with lots is not contained in Schedule 1.

V THE FINANCIAL BARRIERS TO DELIBERATIVE DEVELOPMENT

Whilst there are no legal impediments to deliberative development, analysis of mainstream development finance based on interviews with financiers conducted by Sharam et al, points to several financial hurdles that prevent the model’s wider uptake by housing consumers.^[58] Development finance is a specialised form of project finance that is structured to deal with a range of specific credit risks associated with developing apartments. Barriers to finance imposed by lenders to all developers reflect the ‘the time and cost associated with mitigating those risks’ and, the expected returns for having managed the risk.^[59] Problems with security and equity requirements appear to be the most significant financial issues with the deliberative development model.

A Credibility

A project proponent must demonstrate the level of expertise required to undertake the project, which could be established by reference to previous successful projects.^[60] Deliberative developers at the organic end of the spectrum are unlikely to have this kind of credibility by themselves. However, this could be overcome by engaging building professionals such as project managers, architects and builders whose professional reputations and history of successful projects may be leveraged by what are otherwise amateur consumers.^[61]

B Security

Financiers use a range of legal charges (mortgages, fixed and floating charges) as collateral to avoid losses should a project fail. If a project fails assets subject to the charge are sold in order to recoup the lenders’ losses. Financiers interviewed by Sharam et al suggested they may also require additional personal security from directors where there is insufficient collateral.^[62] This presents a particularly significant financial barrier for deliberative developments made up of individuals who will likely lack sufficient assets to act as collateral for finance. Many proponents of deliberative developments will be first homebuyers, and even if they are not, financiers reported concerns about their reputational risk if repossession of a family home was a possibility.^[63] On the other hand, using the family home as collateral for financial products for ‘mum-and-dad’ investment properties does not appear to be a problem for financiers. It is unclear why a deliberative development that otherwise meets financiers’ risk requirements should be any different.

C Equity

In a traditional development, financiers are unlikely to fund the entirety of the costs of development. Rather, a proportion of the costs, commensurate with their risk assessment will generally need to be funded by the project proponents. Equity contributions could range between 25 and 40 per cent of total development costs and there will generally be an expectation that a proponent has additional financial capacity to cover cost overruns. As Sharam et al point out, this leaves deliberative developers with a significant “equity gap” to overcome.^[64] Even allowing for the 25 per cent claimed reduction in development costs associated with the deliberative development model, equity contributions for a middle-income household seeking to buy their first home will be considerable. A risk assessment of the project that results in a 40 per cent equity contribution requirement will be prohibitive for most middle-income families.

D Pre-sales

As was identified above, pre-sales make up a significant proportion of a traditional developers’ costs. The reason that pre-sales are so important for a traditional developer is that they demonstrate to a lender that the market accepts their product while also guaranteeing that they will repay their debts.^[65] Deliberative development groups overcome this barrier in a more cost-effective way than traditional developers by presenting financiers with a group of locked-in buyers from the outset – without a costly marketing campaign. It is likely that project proponents would be treated as pre-sales and would need to pay deposit which would be unavailable to fund the project.

E Profitability and Loan-to-Value Ratio

Possibly the most significant financial barrier to deliberative development identified both by Sharam et al and project proponents like Nightingale housing, are lender requirements that a project achieve a profit margin of at least 20 per cent.^[66] This requirement is imposed to account for the inflation and the risk premium involved in development.^[67] In short, the amount a financier is willing to lend reflects the end value of the project, or the loan-to-value ratio, which, in a worst-case scenario will represent the funds recouped in a repossession.^[68] Lenders expect a proportion of that value to be developer profit before they are willing to lend, and also need independent verification that the market will accept the product if the development needs to be sold to recoup losses.^[69] The lower the loan-to-value ratio, the more equity will be required from individual proponents to fund the development.

The entire purpose of deliberative development is the realisation of housing at cost, without a developer’s profit, and with designs that are by definition more innovative and tailored to individual preferences. Deliberative developers are therefore less likely than a traditional developer to be able to obtain loan-to-value ratios high enough to fund projects, or show that there will be alternative buyers for a product if their project fails.^[70]

VI PROPOSED SOLUTIONS

Solutions in the Australian literature focus on reducing the risk of individual projects in the eyes of mainstream financiers. In particular, it is proposed by Sharam et al that governments, or as is more likely, community housing organisations (CHOs), should be introduced as guarantors for individual deliberative development projects.^[71] Another solution responsive to financial barriers that have arisen in practice are bundling together a deliberative development and traditional development on the same site for the purpose of financing.^[72] I argue that both solutions, while pushing the boundaries of the model, are ultimately in keeping with the core principles deliberative development of reducing cost and improving apartment quality in the Australian housing market overall.

A Community Housing Organisations as Guarantors

Financiers suggest in their interviews with Sharam et al, that brining in CHOs would result in a more favourable loan-to-value ratio, which would necessarily bring down equity required by group members.^[73] CHOs are well-placed to fulfill the role of guarantor. The collective balance sheet of CHOs in Victoria, for example, contains $2.5 billion worth of assets that could be used as collateral for finance for deliberative developers in that state.^[74] In New South Wales in June 2009, the Minister for Housing announced the transfer of ownership of social housing properties to selected CHOs in order to assist them in securing finance for the maintenance of buildings they were already managing, as well as other programs.^[75] New South Wales CHOs may now have similar balance sheets to Victorian CHOs.

The success of such a scheme would depend on whether CHOs had adequate incentive to participate. Nightingale housing, reserves 20 per cent of its apartments for CHOs, who in turn provide those apartments to their clients on long-term leases.^[76] It is unclear from the publicly available material about Nightingale, if CHOs offered up collateral during the project’s development, and if so, how that effected the project’s loan-to-value ratio. The presence of a Nightingale project in Adelaide, developed in partnership with faith-based organisation may suggest that the CHO model addresses the financial barriers identified. Some have, however, suggested that this solution strays too far from the original principles that underpin deliberative development model.^[77] Such criticism is misplaced. Deliberative development has a strong communitarian focus which is well-served by partnering with CHOs. Moreover, reserving a specific allocation of apartments for CHOs would address some of the problems with social exclusivity of identified above.

B Partnering with Traditional Developers

Another solution to financial challenges that appears to be currently being explored by deliberative developers like Nightingale housing is partnering with traditional developers. In 2017 the Nightingale licensed a development to a commercial developer, who paired an apartment scheme employing deliberative principles like reduced cost and greater customisation, with a more profitable commercial development on the same site.^[78] Both buildings adopted energy performance standards and Nightingale buyers could opt for lower cost options like forgoing a second bathroom or a car park.^[79] While the developments were marketed separately and sold at different prices, they were combined for the purposes of obtaining finance. It was reported that this allowed the developer to keep their margin lower than 20 per cent minimum usually required.^[80]

Interestingly, the commercial developer suggested that by building the Nightingale development as well as their commercial development, they had to accept a smaller profit than they would have otherwise achieved in a purely commercial project. However, using the Nightingale process, which does not rely on presales and instead uses a registration and ballot system to find a group of purchasers, they were able to show the lender certainty of sales.^[81]

Partnering with a traditional developer, like partnering with a CHO, challenges the boundaries of what can be described as deliberative development. I would argue, however, that the gain in terms of expanding the reach of the model is worth the sacrifice in ideological purity. If partnering with speculative developers for example will assist in expanding the number of affordable, high-quality apartments in major centres, or influence traditional developers to improve their product, then so much the better.

VII CONCLUSION

Even in the absence of empirical data about affordability claims, the benefits of the deliberative development in terms of its capacity to provide quality apartments that are better-suited to individual needs, more environmentally ambitious and inherently social are clear and well-documented. Further, as I have demonstrated, all Australian states and territories have a ready-made framework, in strata and community title legislation, to facilitate the creation and effective management of high-quality shared living spaces that come with deliberative development. What remains difficult for deliberative developers is obtaining finance. I have provided two solutions that arise – in the literature, and in practice – that could be adopted more widely by deliberative developers to circumvent or mitigate against the financial barriers. These solutions are practical, and whilst they might dilute the ideological purity of the deliberative development movement, they do not detract from ultimate goals of the model to provide better more affordable and customisable apartment living to middle-income households. Indeed, the model’s true legacy in Australia might be its impact on the otherwise conservative and oligopolistic development industry as deliberative ideas trickle into new speculative apartment designs and developments.

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^[1] Andrea Sharam, Lyndal Bryant and Thomas Alves, ‘Identifying the financial barriers to deliberative, affordable apartment development in Australia’ (2015) 8(4) International Journal of Housing Markets and Analysis 471, 474 (‘Financial barriers to deliberative development’); Andrea Sharam, ‘‘Deliberative development’: Australia’s Baugruppen movement and the challenge of greater social inclusion’ (2020) 35(1) Housing Studies 107, 107. (‘The challenge of greater social inclusion’).

^[2] Iqbal Hamiduddin and Nick Gallent, ‘Self-build communities: the rationale and experiences of group-build (Baugruppen) housing development in Germany’ (2011) 31(4) Housing Studies 365, 365 (‘Rationale and experiences’).

^[3] See generally Andrea Sharam, Lyndall Bryant and Thomas Alves, ‘Making apartments affordable: moving from speculative to deliberative development’ (Swinburne Institute for Social Research, 2015) (‘Making apartments affordable’).

^[4] Ann-Kathrin Seemann, Christin Jahed and Jörg Lindenmeier, ‘Joint building ventures as a new instrument for urban development: a qualitative analysis of Baugruppen in Freiburg, Germany’ (2019) 34(9) Housing Studies 1445, 1449 (‘A qualitative analysis of Baugruppen in Freiburg’); Hamiduddin and Gallent, ‘Rationale and experiences’, (n 2) 374.

^[5] See generally, Sharam, ‘The challenge of greater social inclusion’ (n 1).

^[6] Hamiduddin and Gallent, ‘Rationale and experiences’, (n 2) 374; Seeman, Jahed and Lindenmeier ‘A qualitative analysis of Baugruppen in Freiburg’, (n 4) 1449-50.

^[7] Hamiduddin and Gallent, ‘Rationale and experiences’, (n 2) 374.

^[8] Ibid.

^[9] Ibid.

^[10] Ibid.

^[11] Seeman, Jahed and Lindenmeier, ‘A qualitative analysis of Baugruppen in Freiburg’, (n 5) 1450–2.

^[12] See egs Seeman, Jahed and Lindenmeier, ‘A qualitative analysis of Baugruppen in Freiburg’, (n 4); Sharam, Bryant and Alves, ‘Financial barriers to deliberative development’, (n 1).

^[13] Seeman, Jahed and Lindenmeier, ‘A qualitative analysis of Baugruppen in Freiburg’, 1447 (n 4).

^[14] See eg Sharam, Bryant and Alves, ‘Financial barriers to deliberative development’ (n 1) 475.

^[15] Seeman, Jahed and Lindenmeier, ‘A qualitative analysis of Baugruppen in Freiburg’, (n 4) 1454.

^[16] See eg Seeman, Jahed and Lindenmeier, ‘A qualitative analysis of Baugruppen in Freiburg’, (n 4) 1450–1.

^[17] Richard Lang and Harald Stoeger, ‘The role of local institutional context in understanding collaborative housing models: empirical evidence from Austria’ (2018) 18(1) International Journal of Housing Policy 35, 44.

^[18] Seeman, Jahed and Lindenmeier, ‘A qualitative analysis of Baugruppen in Freiburg’ (n 4) 1451; Hamiddudin and Gallent, ‘Rationale and experiences’ (n 1) 368.

^[19] Ibid.

^[20] Hamiddudin and Gallent, ‘Rationale and experiences’, (n 2) 381.

^[21] Seeman, Jahed and Lindenmeier, ‘A qualitative analysis of Baugruppen in Freiburg’, (n 4) 1454

^[22] Sharam, Bryant and Alves, ‘Making apartments affordable’, (n 3) 13.

^[23] Ibid, 14.

^[24] Ibid, 11, 19.

^[25] Sharam, Bryant and Alves ‘Making apartments affordable’, (n 3) 4, 18.

^[26] Ibid.

^[27] P Newton and S Glackin, ‘Understanding infill: towards a new policy and practice for urban regeneration in the established suburbs of Australia’s cities”, (2014) 32(2) Urban Policy Research 121 in Sharam, Bryant and Alves, ‘Identifying the financial barriers to deliberative development’, (n 1); Sharam, Bryant and Alves ‘Making apartments affordable’, (n 3) 13, 18.

^[28] Sharam, Bryant and Alves ‘Making apartments affordable’, (n 3) 18.

^[29] Sharam, Bryant and Alves, ‘Identifying the financial barriers to deliberative development’, (n 1) 474–5.

^[30] Nightingale 1 has a NatHERS rating of 8.2 stars, is fossil fuel free, and uses rainwater harvesting: Tiffany Pazcek, ‘Nightingale 1 – Australia’s most sustainable building?’ Facility Management (Webpage, 9 March 2018) <https://www.fmmedia.com.au/sectors/nightingale-1-sustainble-building/>.

^[31] Australian Design Review, 'Australia's First Passive House Apartment Building Completed' (Webpage, 3 September 2019) <https://www.australiandesignreview.com/architecture/australias-first-passive-house-apartment-building-completed/>.

^[32] Baugruppen, ‘What is BAUGRUPPEN at WGV’ (Vimeo, 8 March 2017) < https://vimeo.com/user63857768/baugruppen>; Michael Bleby, ‘Nightingale housing model comes a cropper’, Australian Financial Review (online, 2 June 2021) < https://www.afr.com/property/commercial/nightingale-housing-model-comes-a-cropper-20210602-p57xe5>.

^[33] Iqbal Hamiddudin, ‘Social sustainability, residential design and demographic balance: Neighbourhood planning strategies in Freiburg, Germany’ (2015) 86(1) Town Planning Review 29, 48.

^[34] Seeman, Jahed and Lindenmeier, ‘A qualitative analysis of Baugruppen in Freiburg’, (n 4) 1452–4.

^[35] Tedx Talks, ‘Sustainable Apartments – A New Model for the Future | Jeremy Mcleod | TEDxStKilda’ (YouTube, 19 June 2015) <https://youtu.be/AFJj1v3jmYU>; Jennie Officer, ‘Australia’s First Baugruppe’, ArchitectureAU (Blog Post, 19 June 2018) <https://architectureau.com/articles/australias-first-baugruppe/>.

^[36] Seeman, Jahed and Lindenmeier, ‘A qualitative analysis of Baugruppen in Freiburg’, (n 4) 1452–4.

^[37] Hamiddudin and Gallent, ‘Rationale and experiences’ (n 2) 379 cf Sharam, ‘The challenge of greater social inclusion’ (n 1).

^[38] Jennie Officer, ‘Australia’s First Baugruppe’, ArchitectureAU (Blog Post, 19 June 2018) <https://architectureau.com/articles/australias-first-baugruppe/>.

^[39] See eg Strata Schemes Development Act 2015 (NSW); Strata Schemes Management Act 2015 (NSW); Owners Corporations Act 2006 (Vic); Unit Title Schemes Act 2017 (NT);

^[40] W Hemmlich, ‘Rechtliche Modelle – juristische Erfahrungen – Praktische Überlegungen aus juristischer Sicht’(‘Legal models – legal experiences – Practical considerations from a legal perspective’) in G Kuhn and T Haralander (eds), Baugemeinschaften im Südwesten Deutschlands (Joint Building Ventures in South-West Germany) (Deutscher Sparkassen Verlag, 2010) 134, in Seeman, Jahed and Lindenmeier, ‘A qualitative analysis of Baugruppen in Freiburg’ (n 2) 1449.

^[41] Strata Schemes Development Act 2015 (NSW) s 4 (definition of “floor plan”).

^[42] Strata Schemes Development Act 2015 (NSW) s 4 (definition of “location plan”).

^[43] Strata Schemes Development Act 2015 (NSW) s 4 (definition of “original owner”).

^[44] Hamiddudin and Gallent, ‘Rationale and experiences’ (n 2) 377.

^[45] See generally Corporations Act 2001 (Cth).

^[46] See eg Strata Schemes Management Act 2015 (NSW) s 9, s 10.

^[47] See eg Strata Schemes Management Act 2015 (NSW) s 9, s 10.

^[48] See eg Strata Schemes Management Act 2015 (NSW) s136.

^[49] See eg Strata Schemes Management Act 2015 (NSW) s 139(1); Cathy Sherry, Strata Title Property Rights (Taylor Francis, 2016) 32; Mackie v Henderson [2011] WASC 197; (2011) 42 WAR 194 [22] (Edelman J) cited in cited in Cathy Sherry, Strata Title Property Rights (Taylor Francis, 2016) 32.

^[50] See eg Strata Schemes Management Act 2015 (NSW) 136(1).

^[51] See Tedx Talks, ‘Sustainable Apartments – A New Model for the Future | Jeremy Mcleod | TEDxStKilda’ (YouTube, 19 June 2015) < https://youtu.be/AFJj1v3jmYU>.

^[52] See eg Strata Schemes Management Act 2015 (NSW) s 139(2).

^[53] Cathy Sherry, Strata Title Property Rights (Taylor Francis, 2016) 32–33.

^[54] See Nightingale Housing, Nightingale Principles (Webpage) <https://nightingalehousing.org/nightingale-principles>.

^[55] Ibid.

^[56] Ibid.

^[57] Owners Corporation Act 2006 (Vic) sch 1; Owners Corporation PS 501391P v Balcombe (2016) 51 VR 299.

^[58] Sharam, Bryant and Alves, ‘Financial barriers to deliberative development’, (n 1) 476–480.

^[59] Sharam, Bryant and Alves, ‘Making apartments affordable’ (n 3) 11.

^[60] Sharam, Bryant and Alves, ‘Financial barriers to deliberative development’, (n 1) 476.

^[61] Ibid.

^[62] Ibid, 477; Sharam, Bryant and Alves, ‘Making apartments affordable’ (n 3) 11.

^[63] Sharam, Bryant and Alves, ‘Financial barriers to deliberative development’, (n 1) 477.

^[64] Ibid.

^[65] L Bryant, ‘An Assessment of Development Funding for New Housing post-GFC in Queensland, Australia’, (2012) 5(2) International Journal of Housing Markets and Analysis 118 cited in Sharam, Bryant and Alves, ‘Making apartments affordable’ (n 3) 12.

^[66] Sharam, Bryant and Alves, ‘Making apartments affordable’ (n 3) 13; Sharam, Bryant and Alves, ‘Financial barriers to deliberative development’, (n 1) 478. Tedx Talks, ‘Sustainable Apartments – A New Model for the Future | Jeremy Mcleod | TEDxStKilda’ (YouTube, 19 June 2015) < https://youtu.be/AFJj1v3jmYU>

^[67] Sharam, Bryant and Alves, ‘Making apartments affordable’, (n 3) 13–4.

^[68] Sharam, Bryant and Alves, ‘Financial barriers to deliberative development’, (n 1) 478–9.

^[69] Sharam, Bryant and Alves, ‘Making apartments affordable’ (n 3) 13–4; ibid.

^[70] Sharam, Bryant and Alves, ‘Financial barriers to deliberative development’, (n 1) 478–9.

^[71] Ibid, 479–80; Sharam, Bryant and Alves, ‘Making apartments affordable’, (n 3) 24.

^[72] Michael Bleby, ‘Nightingale seeks scale, licenses first housing project to commercial developer’, Australian Financial Review (online, 2 October 2017) <https://www.afr.com/property/nightingale-seeks-scale-licenses-first-housing-project-to-commercial-developer-20170928-gyqrd7>.

^[73] Sharam, Bryant and Alves, ‘Financial barriers to deliberative development’, (n 1) 479–80; Sharam, Bryant and Alves, ‘Making apartments affordable’, (n 3) 24.

^[74] Sharam, Bryant and Alves, ‘Making apartments affordable’, (n 3) 24.

^[75] NSW Government Communities & Justice, ‘Community housing asset ownership’ (Webpage) <https://www.facs.nsw.gov.au/providers/housing/community/provide/manage-your-contract-with-us>.

^[76] See Nightingale Housing, Nightingale Principles (Webpage) <https://nightingalehousing.org/nightingale-principles>.

^[77] Michael Bleby, ‘Nightingale housing model comes a cropper’, Australian Financial Review (online, 2 June 2021) <https://www.afr.com/property/commercial/nightingale-housing-model-comes-a-cropper-20210602-p57xe5>.

^[78] Michael Bleby, ‘Nightingale seeks scale, licenses first housing project to commercial developer’, Australian Financial Review (online, 2 October 2017) <https://www.afr.com/property/nightingale-seeks-scale-licenses-first-housing-project-to-commercial-developer-20170928-gyqrd7>.

^[79] Ibid.

^[80] Ibid.

^[81] Ibid.