Property developers tendering construction work in Australia may be handed a Gantt chart at award, file it away, and only revisit it when something has gone wrong. By then the contractor’s programme has typically done two things the developer never reviewed: it has set the basis on which any Extension of Time (EOT) claim will be assessed, and it has dictated when each progress payment falls due. Most of the construction programming content written in Australia is aimed at the project manager, the contract administrator or the contractor’s planner. Very little of it reads the programme the way a developer should: as a financial document that drives drawdown, holding costs, presales settlement timing and, ultimately, project margin.
This guide takes the developer’s seat. It covers what a Construction Program is under the Australian Standard forms, how to review a baseline programme before you sign it off, where the critical path actually sits in your feasibility, who owns the float and why that matters at claim time, how milestone payments and the Schedule of Values can be quietly front-loaded against you, the mechanics of Extension of Time (EOT) and liquidated damages under AS 4000-1997 and the 2025 update, what each state’s security of payment regime does to the programme, and the most common patterns of programme manipulation worth watching for. It applies across New South Wales (NSW), Victoria (VIC), Queensland (QLD), South Australia (SA), Western Australia (WA), Tasmania (TAS), the Australian Capital Territory (ACT) and the Northern Territory (NT).
Why the programme is a financial document, not a planning document
For the contractor, the programme is a planning tool: a logical sequence of activities, durations and resource allocations the contractor proposes to follow to reach Practical Completion (PC). For the developer, the same programme is a financial document. It sets the dates on which:
- Construction loan drawdowns may be requested and interest may accrue
- Progress claims may validly be made under the Security of Payment Act in the relevant state
- The principal becomes entitled to liquidated damages or, if liquidated damages are not enforceable, common law damages for late completion
- Presales contracts can settle and equity can be released
- Holding costs (rates, land tax, insurance, vacant land assumptions) crystallise
- Defects Liability Period (DLP) commences
A delay of four weeks on a $20 million townhouse project where the interest cost is approximately $50,000 per week, holding costs sit at $8,000 per week, and presales settlement triggers $15 million in repayments, is not really “four weeks” in feasibility terms. It is roughly $232,000 of direct cost plus the float-related drag on capital, plus the risk that buyers exit under sunset clauses. The programme is the document that determines whether that delay is the contractor’s, the developer’s, or shared, and on what evidence. That is why reviewing it with the same rigour as the construction budget is, in our view, time well spent.
What the contract actually calls a “programme”
The terminology varies across the standard form contracts and is worth being precise about because the document name controls the developer’s rights.
Under AS 4000-1997 the document is called the Construction Program and is defined in clause 33.5. The contractor is required to provide a Construction Program in the form required by the contract and must give a copy to the Superintendent. Clause 33.6 governs revisions. Importantly, the Construction Program is the contractor’s statement of how it intends to perform the work. It is not, of itself, a contractual obligation to complete by the dates shown on it. The contractual obligation is to reach Practical Completion by the Date for Practical Completion in Item 8 of the Annexure.
AS 2124-1992 uses similar terminology and similar mechanics, with notable differences in the treatment of concurrent delay (discussed below).
The 2025 update to AS 4000, released by Standards Australia on 27 June 2025 and analysed by Colin Biggers & Paisley and Gilbert + Tobin, retains the same Construction Program architecture but uses the consolidated definition “Program” in clause 1, prescribes a more methodical approach to delay damages in clause 34.9, and tightens Superintendent response obligations where Extensions of Time interact with liquidated damages. The risk allocation between principal and contractor on programming has not fundamentally changed, but the language is cleaner and electronic service of notices is now expressly accommodated.
If your contract is AS 4902 (Design and Construct) the contractor’s programme typically covers both design and construction, and developer review at design stage matters more because design slippage tends to be a quiet early erosion of float.
If your contract is a bespoke principal-drafted document (most large NSW residential developments use one), check carefully whether the programme is described as a “contract document” or merely as evidence of the contractor’s intended approach. The legal effect is materially different.
How to read a baseline programme before you sign it off
Most developers receive the contractor’s baseline programme either as an attachment to the contract documents or in the first few weeks after award. The instinct is to skim, satisfy yourself the Date for Practical Completion lines up with the contract, and move on. We would urge a longer look. The baseline programme is the benchmark against which every future Extension of Time (EOT) claim will be measured. If it is built on flawed assumptions, every later claim will be assessed on the same flawed basis.
A developer-side review of the baseline programme could reasonably cover the following points, broadly drawn from the American Association of Cost Engineers Recommended Practice 78R-13 and the Society of Construction Law Delay and Disruption Protocol (2nd edition), adapted for the developer’s perspective.
Is the scope complete?
The baseline programme should reflect the full contract scope. A common pattern is to omit activities that the contractor expects to subcontract late, particularly trade fit-out items, façade installation, lift installation and final landscape works. If they are not on the programme, they will not show up on the critical path, and any later EOT claim involving them will be assessed against a programme that quietly assumed they would not affect completion. Cross-check the activity list against the bills of quantities and the scope schedule.
Do the durations look realistic?
FTI Consulting and others have noted that baseline programmes often contain optimistic durations on activities the contractor expects to perform itself and conservative durations on activities subject to principal input (design coordination, Request for Information turnaround, Superintendent approvals). The asymmetry generally favours the contractor at claim time. Benchmark major durations against published industry data or the Quantity Surveyor’s pre-tender programme, and query material variances.
Are the logic links genuine, or preferential?
Activities should be linked by physical, contractual or resource constraints, not by the contractor’s preferences or convenience. A common pattern flagged in baseline review literature is logic that drives an unrelated activity in Area A from an activity in Area B, with no construction reason for the dependency. These “preferential” links create artificial critical paths that are easier for the contractor to claim against later.
Are lead-in items shown?
Long-lead procurement (lifts, façade, mechanical plant, switchboards) should appear on the programme as discrete activities with realistic lead times. If they are buried in the trade activity, the developer cannot identify procurement risk early. Lifts in particular have had 24 to 40 week lead times in parts of the Australian market in 2024 and 2025, with supply chain commentary documenting persistent constraints.
Are principal-supplied items, free issue items and consultant deliverables identified?
The contractor’s programme should clearly show every activity that depends on the developer or the design consultants. These are the activities most likely to generate later EOT claims if the developer is late. Show them, agree the lead times in writing, and then plan internally to deliver to them with float.
Has weather been allowed for?
Most Australian capital cities have established “non-working days” averages by month. Brisbane and Sydney lose more days to weather than Melbourne and Adelaide. A programme with no weather allowance is signalling either an unrealistic schedule or an intention to claim weather as an Extension of Time event for every wet day. Either outcome is suboptimal for the developer.
Are float allocations visible?
The programme should show float on non-critical activities. This is not because the developer is entitled to use it (see below), but because visible float helps the Superintendent assess whether a contractor’s delay claim is actually critical or simply consuming non-critical float. Programmes that show zero float on every activity are signalling a critical path so densely populated that any disruption becomes a claim.
Is the Construction Program in machine-readable, logic-linked form?
In our experience, accepting a printed Gantt chart and not the underlying Primavera P6, Microsoft Project or Asta Powerproject file is one of the more common developer mistakes. Without the underlying file, neither the developer nor the Superintendent can run a meaningful delay analysis later. Specify the file format in the contract.
The critical path: what it is and why developers should care
The critical path is the sequence of activities through the programme that has zero total float, meaning the path on which any delay to any activity translates directly into a delay to Practical Completion. The Critical Path Method (CPM), developed in the 1950s by James Kelley and Morgan Walker for the Du Pont and Remington Rand companies and adapted extensively in Australian construction, is the standard analytical framework.
For the developer, three things follow from understanding where the critical path runs.
First, the critical path is where time-related cost lives. Acceleration on the critical path may shorten the build; acceleration on non-critical activities will not. If the contractor proposes an acceleration arrangement (extra crews, weekend work, additional shifts) for activities not on the critical path, the principal is typically paying for nothing.
Second, EOT claims have to be tied to critical path delay to be valid. A delay event that affects a non-critical activity (for example, a Request for Information (RFI) turnaround issue that only impacts an internal fit-out trade with significant float) generally does not entitle the contractor to an Extension of Time. The Superintendent should be assessing claims against the critical path at the time of the delay event, not against the original baseline. The Society of Construction Law Delay and Disruption Protocol (2nd edition) provides the methodology, and Australian courts (notably the Queensland Supreme Court in Santos v Fluor) have engaged with the Protocol favourably.
Third, the critical path moves. Activities that were on the critical path at award may no longer be critical six months in; activities that were not critical at award may have become critical. Windows analysis, which assesses delay against the critical path as it existed at the time of the delay event, is generally the most accepted methodology in Australia and is endorsed by the Society of Construction Law Protocol.
The practical implication for the developer is to insist on monthly programme updates with the as-built progress recorded, the current critical path identified, and any logic changes from the baseline expressly notified.
Who owns the float?
Float is the period between the earliest possible start and the latest possible finish of an activity, less the duration of the activity itself. On non-critical activities there is positive float; on critical path activities there is zero float (by definition).
The question of who “owns” the float is one of the more practically important programme questions for developers because it determines what happens to an Extension of Time (EOT) claim where the delay event consumes float but does not (yet) push out the Date for Practical Completion. As Bradbury Legal summarises, the three classical positions are:
- Principal owns the float. The contractor cannot claim an Extension of Time until float is exhausted and critical delay has occurred
- Contractor owns the float. The contractor is entitled to use float for its own risk events and programme rescheduling
- Project owns the float. Float is used first-in, first-out, allocated to whichever delay arises first
At common law, Bradbury notes, float is owned by neither party absent agreement. Standard form contracts modify this in varying ways, often through their definition of “Construction Program” and the EOT clauses. The growing Australian view, as discussed by Lexology contributors and Corrs, is that the contractor typically owns the float subject to delay claims being assessed against critical-path events.
From the developer’s perspective the better drafting position is generally to make this express. The contract may specify that float in the programme is for the benefit of the project (not the contractor) and that an Extension of Time will only be granted to the extent the delay event causes a critical delay to the Date for Practical Completion. The wording matters: case law has consistently treated programme silence as ambiguity to be resolved against the principal.
Aligning milestone payments with the critical path
Most medium and large Australian developments will use either monthly progress payments based on a Schedule of Values or milestone payments triggered by defined achievement points (such as slab pour, frame complete, lock-up, fit-out complete, Practical Completion). The choice between them has structural consequences.
Monthly progress payments based on a Schedule of Values typically apply across commercial and large residential projects and align with the contractor’s monthly billing cycle. The Schedule of Values breaks the contract sum into line items, the contractor claims the percentage complete each month, and the Superintendent assesses and certifies. The risk is that the Schedule of Values is front-loaded.
Milestone payments link payment to defined physical achievement. The risk for the developer is that the milestones are coarsely defined (“frame complete”) so that 95% completion attracts the same nil payment as 5% completion, leading to mid-milestone cash flow tension and pressure to certify before milestones are genuinely achieved.
A reasonable middle position, common in NSW residential developments, is a hybrid: monthly progress payments based on a Schedule of Values for the bulk of the work, with a small number of significant milestone gates (typically Practical Completion and Defects Liability Period expiry) where retention is held.
Whichever model is used, the developer should expect the payment schedule to align with the critical path activities, not with arbitrary calendar points. A milestone schedule that releases 35% of the contract sum at “frame complete” on a build where the frame is 18% of the cost is signalling either a poorly thought-through schedule or a payment structure that has been front-loaded against the developer.
Front-loading patterns in the Schedule of Values
Front-loading is the practice of weighting the early line items in the Schedule of Values disproportionately to actual cost, so that early progress claims attract a larger payment than the corresponding work would justify on a cost basis. It is, in our experience, the single most common payment-side pattern developers should watch for. Levelset documents the practice in detail and identifies the common levers:
- Inflated preliminaries: site establishment, site sheds, scaffolding, hoardings and crane mobilisation claimed at unrealistic percentages early in the project
- Inflated mobilisation line items: mobilisation costs claimed at 100% in month one even though demobilisation will not occur for 18 months
- Front-weighted general conditions: the contractor’s general conditions percentage applied unevenly across the programme, with higher percentages claimed in months one through three
- Inflated material on-site claims: materials delivered to site but not yet installed claimed at full value (this is sometimes contractually permitted with conditions, but the conditions, including Personal Property Securities Register (PPSR) registration, are often not properly satisfied)
- Optimistic ”% complete” assertions: early line items claimed at 80% to 90% complete when the visible site evidence supports 40% to 50%
The risk to the developer is structural: front-loaded payments increase early drawdown on the construction loan, increase early interest, and reduce the retention available later in the project if a defect, dispute or insolvency event arises. As Levelset notes, if a problem arises mid-job, there may not be money left on the table to smooth things over.
The defensive position is to insist that the Schedule of Values be reconciled to the priced bill of quantities, with each line item supported by the cost build-up. Where front-loading is detected, the Schedule of Values should be rebalanced before the first progress claim is approved, not after.
Extension of Time (EOT): the mechanics that matter
Under AS 4000-1997 clause 35.3 the contractor must claim an Extension of Time within 28 days of when the contractor should reasonably have become aware that the cause of delay would result in a delay. The Superintendent has 28 days to respond under clause 35.5. The clauses interact in three ways that matter to the developer.
Deemed approval risk. Clause 34.5 of AS 4000 (referring to the Superintendent’s response to the Extension of Time claim) provides that if the Superintendent does not respond within 28 days, there is a deemed assessment and direction for an Extension of Time as claimed. The practical implication is that a Superintendent who is slow, distracted or unsupported can grant Extensions of Time by inaction. Developers using AS 4000 should ensure the Superintendent is properly resourced and instructed to respond to every claim in writing within the 28 day window.
Concurrent delay treatment. Turtons documents that AS 4000 clause 34.4 apportions concurrent delay according to the respective contributions of qualifying and non-qualifying causes, while AS 2124 effectively bars the contractor from an Extension of Time where any concurrent cause is not a qualifying cause. This is a meaningful difference and one of the reasons AS 2124 has historically been viewed as more principal-friendly on time risk.
Late claims and time bars. AS 4000 clause 41.2 provides that a late notice of claim “shall not bar nor invalidate the claim”. The contractor’s entitlement may be reduced to the extent the late notice causes the principal loss, but it is not automatically extinguished. This is unlike strict time bar drafting some principals attempt in bespoke contracts. For developers using AS 4000 in unamended form, the 28 day notice period is not strictly enforceable as a time bar.
Prevention principle. As Pinsent Masons describes, the prevention principle provides that a principal cannot enforce liquidated damages for delays they caused. If the EOT clause is unenforceable or the Superintendent fails to exercise it properly, time may become “at large”, meaning the contractor is required only to complete within a reasonable time, and the developer loses the right to liquidated damages entirely. Time-at-large risk is the principal nightmare scenario and one of the strongest arguments for active, careful contract administration.
Liquidated damages: setting the rate, and recent cases
Liquidated damages are the pre-agreed daily amount the contractor pays the principal for each day Practical Completion is reached after the Date for Practical Completion. They are intended as a genuine pre-estimate of the principal’s loss from late completion, not a penalty.
Two recent NSW Court of Appeal decisions reshape how developers should think about the liquidated damages rate.
In Carbone v Fowler Homes Pty Ltd [2024] NSWCA 192, summarised by DLA Piper, the Court held that a liquidated damages clause set at $1 per day under the Housing Industry Association (HIA) NSW Residential Building Contract for New Dwellings was negligible compared to the contract price and that clear language was required before a principal’s right to common law damages for breach of contract would be treated as abrogated. The practical effect: where liquidated damages are set at a token amount, the principal may still be able to claim common law damages for actual loss. The case opens up an unexpected upside for developers caught with a low or nominal liquidated damages rate, but it is fact-specific and should not be relied upon.
In XJS World Pty Ltd v Central West Civil Pty Ltd [2025] NSWCA 133, summarised by Clayton Utz, the Court held that the failure to fill in a date for completion in the contract particulars meant no liquidated damages were payable. The Court of Appeal will not “fill in the blanks” where optional clauses are left unactivated.
The drafting implication is direct. Developers should:
- Specify a Date for Practical Completion in Item 8 of the AS 4000 Annexure, not leave it blank or “to be agreed”
- Set the liquidated damages rate as a genuine pre-estimate of holding costs, finance costs, lost presales settlements and lost rental, supported by a written calculation
- Avoid specifying liquidated damages as “$Nil”, “Zero” or “N/A”. The AS 4000:2025 guidance notes flag that these specifications may result in no damages being payable at all
A reasonable liquidated damages rate on a $20 million residential development might range from $2,000 to $8,000 per day depending on the project’s finance cost, presales exposure, and end use. The exact number should be supported by a written analysis prepared at the time the contract is signed; this strengthens the principal’s defence against any later argument that the figure is a penalty rather than a genuine pre-estimate.
Programme manipulation patterns to watch for
A developer-side review of the programme could reasonably look for the following patterns, drawn from baseline review literature (FTI Consulting, HKA, Ron Winter Consulting) and adapted for the Australian context.
Fixed dates without justification. Activities flagged with “must start” or “must finish” date constraints without a contractual or physical reason. These constraints override the normal logic of the programme and can mask delays. Strip constraints out and require the contractor to justify any retained ones.
Long-duration activities with no breakdown. A single activity of 90 days for “façade installation” tells you nothing about whether work is on track at day 30. Insist on activity breakdown to no more than 20 to 30 working days per activity for items on the critical path.
Open-ended logic links. Activities with no successor, or successors with no predecessor. These are dangling logic that the contractor can later use to argue that a delay event affects an activity that the programme did not actually constrain.
Optimistic durations on contractor-controlled activities and conservative durations on principal-controlled activities. Internal fit-out activities benchmarked at industry minimums; Request for Information turnaround benchmarked at maximums. The combined effect is to leave the contractor with float on its own work and the developer exposed on its consultancy deliverables.
Pacing delays. Long International defines pacing delay as a delay in one activity where a conscious and contemporaneous decision is made by the contractor to pace progress in a second activity because the first is delayed. Pacing is legitimate in principle but is often asserted retrospectively to convert what was really contractor delay into concurrent delay (and so reduce liquidated damages exposure). Insist on contemporaneous evidence (emails, internal programmes, progress photos) before accepting pacing.
Missing lead-in detail. Procurement-driven activities (lifts, façade, switchboards) shown as starting from day 1 of installation with no purchase order, fabrication or delivery shown upstream. This pattern often surfaces in mid-project EOT claims where the contractor argues a delay in the principal-approved shop drawings caused the supply chain delay.
Float burying. Total float distributed evenly across all non-critical activities, with no single activity showing more than 5 to 10 days of float, even when the programme as a whole has weeks of slack. Even float distribution makes it easier for the contractor to assert that any non-critical delay event consumed “all the float on this activity” and therefore became critical.
Inconsistency between programme and Schedule of Values. Where the programme shows façade installation in month 14 to 16 but the Schedule of Values has 30% of the façade line item claimed in month 6 (notionally for “material on site”), the two documents are telling inconsistent stories.
The defensive posture is to insist that the contractor’s monthly programme update includes a written narrative explaining any change from the previous month: new activities, deleted activities, logic changes, duration changes, constraint changes. Programme drift becomes easier to track and harder to obscure.
Security of Payment regimes and the programme
Every Australian state and territory has a Security of Payment regime that operates in parallel with the construction contract and gives the contractor a statutory right to make progress claims. The interaction with the programme matters because security of payment claims are typically tied to monthly “reference dates” or, increasingly, calendar months.
New South Wales
The Building and Construction Industry Security of Payment Act 1999 (NSW) provides that progress payment claims must be made at monthly intervals. The NSW Civil and Administrative Tribunal (NCAT) has consistently reinforced that monthly payment entitlements are statutory rights that supersede contractual milestone provisions. The recent amendment via section 8(2) prevents unlicensed or uninsured contractors from using the Act to obtain interim payments. The NSW Building Bill (consultation 2024 to 2025, expected introduction in 2025 to 2026) will consolidate the Design and Building Practitioners Act 2020 (NSW) and the Home Building Act 1989 (NSW) and may extend licensing to commercial builders. Developers should expect further timing impacts on the contractor selection process.
Victoria
Significant amendments to the Building and Construction Industry Security of Payment Act 2002 (Vic) commenced on 15 April 2026, summarised by MinterEllison. The Bill removes the “reference date” concept and instead gives claimants the right to submit payment claims on and from the last day of each month (or earlier if the contract permits). It also extends the post-Practical Completion claim window to six months. For developers, the practical consequence is that monthly progress claims are now the default; contractual milestone-only payment regimes that cut across the monthly statutory right are at risk of being unenforceable.
Queensland
The Building Industry Fairness (Security of Payment) Act 2017 (Qld) defines reference dates in section 67. If the contract does not specify reference dates, the default is the last day of the month in which the construction work was first carried out. Progress payments are due by the date stated in the contract or, if no date is stated, within 10 business days after the payment claim is given, as administered by the Queensland Building and Construction Commission.
South Australia and Western Australia
SA operates under the Building and Construction Industry Security of Payment Act 2009 (SA). WA reformed its regime under the Building and Construction Industry (Security of Payment) Act 2021 (WA), which has phased in across project types since 2022. Both regimes follow the broader “East Coast model” of monthly reference dates with adjudication on dispute, though procedural deadlines vary.
Tasmania, Australian Capital Territory and Northern Territory
Tasmania’s Building and Construction Industry Security of Payment Act 2009 (Tas), the ACT’s Building and Construction Industry (Security of Payment) Act 2009 (ACT) and the NT’s Construction Contracts (Security of Payments) Act 2004 (NT) each provide statutory monthly claim rights. The NT regime is closer to the WA model (more weighted towards adjudication on dispute) than to the East Coast model.
The practical effect for developers across all eight states and territories is that the programme should be read as setting the rhythm of monthly progress claims regardless of what the contract milestone schedule says, and the construction loan covenants should be structured accordingly.
Where Feasly fits
For developers carrying out feasibility analysis on a project where construction timing is a meaningful driver of margin, the construction programme drives a number of key feasibility inputs: drawdown profile, interest cost, holding cost duration, presales settlement timing and (where Build-to-Hold) stabilised income commencement. Modelling these inputs against a base case programme is one thing; modelling them against a sensitivity range (say, 4 weeks, 8 weeks or 12 weeks of programme slippage) is what reveals whether the project’s margin can absorb construction delay or whether it would collapse under a moderate Extension of Time event.
With Feasly’s feasibility modelling and sensitivity analysis you can model a base case programme and stress-test it against multiple slippage scenarios, viewing the resulting impact on Internal Rate of Return (IRR), Return on Cost (RoC), peak debt and equity timing in parallel. The output is not a single answer but a range, which is the more honest representation of construction timing risk for any feasibility presented to equity partners or financiers.
Looking at this from the developer’s chair
The recurring theme across this guide is that the programme is a financial document that drives drawdown, interest, holding cost duration, presales settlement, liquidated damages exposure and equity return. Treated that way, the developer’s review at award is more thorough, the monthly programme update is more carefully scrutinised, and the contract administration over the build period catches problems while they are still inexpensive to fix.
The construction industry has its own vocabulary for the programme: critical path, float, pacing, baseline, windows analysis. The shortcut to working with it effectively is to remember that all of these terms are ultimately ways of describing how the contractor will spend the developer’s money over time, and on what timeline that spending becomes the developer’s loss if completion slips. The Australian Standard forms, the Security of Payment Acts in each jurisdiction, and the recent NSW Court of Appeal decisions on liquidated damages are all attempts to allocate this risk. They are, on balance, more favourable to a developer who has read the programme carefully and amended the contract thoughtfully than to one who has not.
If you would value a deeper read on the related contracting topics, our guides on guaranteed maximum price contracts, design and construct contracts, construction finance for property developers and how to choose a builder pair naturally with this one.