Northern Rivers Commercial Property Return to Business Support Grant – Terms and Conditions

1. Application and acceptance of Terms and Conditions

1.1. The NSW Government is delivering the Northern Rivers Commercial Property – Return to Business Support Grant Program ('the Program’). Under the Program, eligible Businesses and Not-for Profit Organisations who were impacted by the storms and flood disaster events in February and March 2022, will be supported to pay costs associated with re-establishment, clean-up and reinstatement of Commercial Property to allow for a return to business for tenants and occupants.

1.2. Payments made under the Program will be made as act of grace payments under section 5.7(1) of the Government Sector Finance Act 2018 ('GSF Act'). The conditions in clause 7.1 are conditions that will be imposed by the Minister for Customer Service or his delegate on the making of the payment under section 5.7(2) of the GSF Act. If any of the conditions in clause 7.1 are contravened, the payment may be recovered from the recipient by the Crown as a debt due to the Crown pursuant to section 5.7(3) of the GSF Act.

1.3. By applying to receive a payment under the Program, Applicants agree to be bound by these Terms and Conditions.

1.4. Additional information about the type of documentation and evidence required to apply for payments under the Program is available on the Service NSW website.

2. Definitions and interpretation

2.1. In these Terms and Conditions, unless the context otherwise requires:

2022 Floods means the declared disaster AGRN 1012, NSW Severe Weather and Flooding from 22 February 2022 onwards.

ABN means an Australian Business Number.

ACNC means the Australian Charities and Not-for-profits Commission

Applicant means a Business or Not-for-profit Organisation that makes an application to receive a payment under the Program.

Business means an entity carrying on a business as per the Corporations Act 2001 (Cth) with an ABN.

Commercial Property means a lot, or lots, of land, including a lot in a strata plan, used primarily for commercial purposes in accordance with its zoning.

Commercial Space means a space within Commercial Property that is occupied, or intended to be occupied, by a business. Where a business occupies more than one shop/space/unit at the commercial property, the commercial property owner will be entitled to one grant for the tenancy (ie the commercial space occupied by an individual business), regardless of the number of spaces/units included in the lease.

Note: For example, a shop or store within a shopping centre or arcade.

Defined Area means these Local Government Areas:

(a) Ballina;
(b) Byron;
(c) Clarence Valley;
(d) Kyogle;
(e) Lismore;
(f) Richmond Valley; and
(g) Tweed Shire.

Eligible Expenses means expenses associated with re-establishment, clean-up and reinstatement of the Commercial Property and each claimed Commercial Space, and includes:

(a) engagement of a tradesperson to conduct a safety inspection of damage to the Commercial Property or Commercial Space, including buildings, fittings or fixtures;

(b) purchasing, hiring or leasing equipment or materials to clean the Commercial Property or Commercial Space, including buildings, fittings or fixtures;

(d) employing a person to clean the Commercial Property including its buildings, fittings or fixtures, provided the cost would not ordinarily have been incurred if the 2022 Floods had not occurred;

(e) removing and disposing of debris or damaged materials related to flood damage at the Commercial Property or Commercial Space;

(f) repairing or replacing the building, fittings or fixtures situated at the Commercial Property or in the Commercial Space,

but does not include Excluded Expenses.

Evidence of Payment means any of the following:

(a) an invoice including:

(i) the name, address and ABN (if applicable) of the entity that issued the invoice; and
(ii) a description of each item to which the invoice relates, such item being clearly identifiable as being related to approved expenditure for the applicant and can be related to damage from the 2022 Floods; or

(b) a receipt including:

(i) the name and address and ABN (if applicable) of the entity that issued the receipt; and
(ii) a description of each item to which the receipt relates; or

Excluded Expenses means the following expenses:

(a) repairs to buildings, fitting and fixtures located at any place other than the Commercial Property;

(b) damage at the Commercial Property covered by insurance;

(d) costs covered by funding or assistance which the applicant has received from any other NSW Government or Commonwealth Government source, program or other donation relating to the 2022 Floods, including under a Previous Grant;

(e) loss of income caused by the 2022 Floods; and

(f) if the Applicant is an owner’s corporation, costs for repair to common property that have been levied against individual lot owners.

Expanded Small or Medium Business means any Business which, at the time of or in the 6 months prior to the 2022 Floods, employed:

(a) staff with their principal place of employment either inside or outside of the Defined Area; and

(b) less than 200 full-time-equivalent staff with their principal place of employment inside the Defined Area.

Financial Hardship means that the Applicant:

(a) is, at the time of their claim:

(i) at imminent risk of having to sell; or
(ii) unable to pay for repairs to flood-related damage to,
the Commercial Property in respect of which a claim is made;

(b) has not incurred excessive and non-essential expenses; and

(c) cannot, at the time of their claim, practically rearrange finances or draw upon non-essential assets to repair the flood-related damage.

GSF Act means the Government Sector Finance Act 2018 (NSW).

Not-for-profit Organisation:

(a) means an entity whose principal objective is not the generation of profit;

(b) may be a single entity or a group of entities comprising the parent entity and each of the entities that it controls; and

NSW Government means the Crown in right of the State of New South Wales acting through its various emanations, including the Department of Customer Service, the Department of Regional NSW, Revenue NSW and Service NSW.

Previous Grant has the meaning given to it by clause 4.3.

Program has the meaning given to it by clause 1.1

Public Company has the meaning given to it by the Corporations Act 2001 (Cth).

Registered Charity means an entity that is registered with the ACNC.

Returning Customer means an Applicant that has previously claimed and received a payment under a Previous Grant for the same Commercial Property.

Small or Medium Business means any Business which, at the time of or in the 6 months prior to the 2022 Floods, employed

(a) only staff with their principal place of employment inside of the Defined Area; and

(b) less than 200 full-time-equivalent staff.

Superannuation Fund means a superannuation fund regulated by the Australian Prudential Regulation Authority and does not include a self-managed superannuation fund as defined in the Superannuation Industry (Supervision) Act 1993.

Terms and Conditions means these Terms and Conditions for participation in the Program.

Underinsured means having insurance for severe weather and/or flood damage that is insufficient to cover the cost of repairing the damage in respect of which a claim is made under the Program.

2.2. Unless the context requires otherwise

(a) the singular includes the plural and vice versa, reference to a gender includes all genders, reference to 'person' includes a natural person, company, body corporate or other form of legal entity, and reference to 'including' and 'includes' and 'for example' is to read as if followed by 'without limitation'; and

(b) if a word or phrase is given a defined meaning, any other part of speech or grammatical form of that word or phrase has a corresponding meaning.

3. Application to receive a payment under the Program

3.1. An Applicant may apply for payment under the Program online via the Service NSW website. Applications must be received before 30 June 2023.

3.2. The maximum payment that an Applicant can claim for is:

(a) where the Commercial Property that the Applicant owns comprises more than one Commercial Space: $50,000 per Commercial Space; or

(b) where the Commercial Property that the Applicant owns comprises one Commercial Space: $50,000.

3.3. Should an initial claim by an Applicant be for less than the maximum payment that they can claim (as specified above), the Applicant may submit additional claims up to that amount of that maximum payment.

3.4. Notwithstanding any other provision in these Terms and Conditions, the NSW Government may refuse to progress an application, or reject an application, for any reason, including (but not limited to) that, in the opinion of the NSW Government, the Applicant does not meet the eligibility criteria in clauses 4.1-4.5.

3.5. By applying to receive a payment under the Program, an Applicant consents to the NSW Government disclosing information, including personal information, provided by the Applicant for the purposes of administering or reporting on the Program, including (but not limited to) to the disclosure of such information to State and Commonwealth government agencies including (but not limited to) Services Australia and local councils for the purposes of verifying particulars of the application.

3.6. Information provided by an Applicant in its application or otherwise in accordance with these Terms and Conditions must be true and correct. It is a serious offence to provide false or misleading information to a public authority.

4. Eligibility

4.1. In order to be eligible for the payment claimed, an Applicant must:

(a) be the registered owner of a Commercial Property located in the Defined Area on 22 February 2022;

(b) demonstrate (and provide evidence accordingly) that direct damage was suffered as a result of the 2022 Floods to:

(i) Commercial Space within the Commercial Property that was, at the time of or in the 6 months prior to the 2022 Floods, subject to a lawfully executed and binding commercial lease agreement with a tenant (as the named lessee) who was operating a Small or Medium Business or an Expanded Small or Medium Business;
(ii) Commercial Space within the Commercial Property that was, at the time of or in the 6 months prior to the 2022 Floods, subject to a commercial lease agreement with a tenant who was operating a Small or Medium Business without a formal commercial lease agreement in place;
(iii) Commercial Space within the Commercial Property that was, at the time of the 2022 Floods, subject to advanced stage negotiations to be leased to a Small or Medium Business;
(iv) Commercial Space within the Commercial Property that was, at the time of or in the 6 months prior to the 2022 Floods, advertised as available for commercial leasing;
(v) the Commercial Space within the Commercial Property was, at the time of or in the 6 months prior to the 2022 Floods, undergoing renovations to enable the Commercial Space to be leased to a Small or Medium Business;
(vi) Commercial Space within the Commercial Property that was, at the time of or in the 6 months prior to the 2022 Floods, used by the applicant to operate a Small or Medium Business; or
(vii) common property or shared facilities within the Commercial Property that was, at the time of or in the 6 months prior to the 2002 Floods, used (or intended to be used) in connection with operating a Small or Medium Business,

(d) intend to repair the damage to a condition which enables:

(i) occupancy and commencement (or recommencement) of a commercial lease at the Commercial Property; or
(ii) occupancy and return to business by the Applicant;

(e) be primarily responsible for meeting the costs of such repair that are claimed in the application;

(f) if applying as a Not-for-profit Organisation, be, on or before 22 February 2022:

(i) registered with the ACNC or an equivalent State regulatory body;
(ii) registered as an incorporated association or co-operative with Fair Trading NSW; or
(iii) deemed to be a not-for-profit organisation, in accordance with the current Australian Accounting Standards;

(g) be suffering from Financial Hardship, but only where:

(i) the Commercial Property is zoned for mixed use;
(ii) the Applicant is making a claim on the basis of having demonstrated the criterion in clause 4.1(b)i, and the tenant referred to in that clause was operating an Expanded Small or Medium Business;
(iii) the Applicant is making a claim on the basis of having demonstrated the criteria in clauses 4.1(b)ii, 4.1(b)iii, 4.1(b)v or 4.1(b)vii.

4.2. Notwithstanding clause 4.1, an applicant cannot claim payment under the Program in respect of:

(a) Commercial Property owned and operated by:

(i) a Public Company;
(ii) a company “connected with” a public company, as defined by TD 2022/5 made under the Taxation Administration Act 1953 (Cth); and
(iii) a company that is incorporated outside of Australia or part of a corporate group where at least one company within the group is incorporated outside of Australia;

(b) Commercial Property used to operate mining, primary industry, forestry or fishery businesses;

(d) Commercial Property upon which there are no buildings, fittings or fixtures.

4.3. Notwithstanding clause 4.1, an Applicant cannot claim payment under the Program in respect of costs claimed and paid in relation to the same Commercial Property under any other governmental assistance program (“Previous Grant”) including:

(a) $50,000 February and March 2022 Storm and Flood Disaster Recovery Small Business Grant;

(b) $200,000 February and March 2022 Storm and Flood Northern Rivers Medium Business Grant;

(d) $75,000 Primary Producer Special Disaster grant for the February 2022 NSW floods; and

(e) $25,000 Rural Landholders Grant for the February 2022 NSW floods.

4.4. Notwithstanding clause 4.1, where an Applicant operates through a trust structure, only the entity operating the business is eligible to apply to receive a payment under the Program. Any entity that receives a passive income from the business is ineligible.

4.5. Notwithstanding clause 4.1, an Applicant may be eligible for the payment claimed in exceptional circumstances determined at the discretion of the NSW Government. The NSW Government may request additional supporting information from the Applicant in order to make that determination.

5. Evidence requirements

5.1. When submitting an application for payment under the Program, an Applicant must submit:

(a) proof of ownership of the Commercial Property or Commercial Space in the form of a contract for the sale of land, a Council rates notice for the 2020-21 financial year, or Revenue NSW Client ID and Correspondence ID;

(b) proof of use of the Commercial Property or Commercial Space in accordance with clause 4.1(b) (for example, a copy of either the commercial lease agreement, advertisements for lease);

(c) copies of any relevant insurance documents, including a certificate of insurance and determination of any relevant insurance claim;

(d) proof of identity documents;

(e) proof of ownership of damaged fixtures, including structures, equipment and materials;

(f) proof of direct damage to the Commercial Property or Commercial Space, including:

(i) a document listing the direct storm and flood-related damage in respect of which the application is made; and
(ii) photographic evidence of all such direct and flood-related damage; and

(g) Evidence of Payment, but only if:

(i) the amount claimed is greater than $25,000; or
(ii) the Applicant is a Returning Customer.

5.2. Where the Commercial Property comprises multiple Commercial Spaces, the Applicant must submit proof that each of the applicable eligibility criteria in clause 4 is satisfied in respect of each Commercial Space, in the form specified in clause 5.1.

5.3. Notwithstanding any other provision in these Terms and Conditions, the NSW Government may require the Applicant to provide additional information or clarification (including from any other public entity or person) in order to determine if an application meets the eligibility criteria in clause 4. The additional information required may include, without limitation, any or all of the following:

(a) a building assessment by a certified building assessor;

(b) depreciation tables;

(c) evidence to distinguish a claim for payment under the Program from any claim for costs by the Applicant under a Previous Grant, including:

(i) further photographic evidence of damage;
(ii) tax invoices, official receipts, bank statements or other similar records to verify the amounts paid under the Previous Grants have been used in accordance with the intention of the Previous Grants; and
(iii) any other evidence to verify any fact, matter or thing;

(d) any other information required by guidelines published by the NSW Government in relation to the program.

Where an Applicant is unable to provide these documents, or where the NSW Government is satisfied it has other suitable methods to determine eligibility, other forms of documentation may be accepted.

6. Auditing and compliance requirements

6.1. By applying to receive a payment under the Program, an Applicant consents to the NSW Government and its agents conducting an audit of its compliance with these Terms and Conditions, including an audit of all tax invoices, official receipts, bank statements, quotations or other similar records. The Applicant must provide any information or documentation that is reasonably required for the purpose of such audit or investigation.

6.2. By applying to receive a payment under the Program, an Applicant agrees to keep records relating to its application until 7 years after the closing day for applications for the Program.

7. Conditions for payment under the Program

7.1. All payments to an Applicant under the Program are made on the condition that:

(a) the Applicant meets the eligibility criteria in clause 4.1-4.5.

(b) the application for payment complies with the evidence requirements in clause 5 (as applicable);

(c) the Applicant complies with the auditing and compliance requirements in clause 6 and any requirement to repay under clause 9;

(d) the Applicant uses the payment to cover Eligible Expenses and not to cover any Excluded Expenses;

(e) the Applicant consents to the NSW Government disclosing information in relation to its application amongst its agencies or third parties to assist with determining eligibility for payments under the Program and for compliance purposes;

(f) the Applicant consents to the NSW Government conducting site visits to assist with determining eligibility for payments under the Program and to conduct compliance activities;

(g) the Applicant complies with the law at all times, including public health orders and COVID-19 restrictions;

(h) where the NSW Government advises the Applicant in writing that a specified amount has been paid under the Program:

(i) as an overpayment; or
(ii) otherwise in error;

the Applicant will repay that amount as directed within 28 days of it being so advised;

(i) no information included in the application for payment or any further request for information is false or misleading; and

(j) the application for payment is made before 30 June 2023.

7.2. An Applicant must take all reasonable steps to ensure that the conditions in clause 7.1 are or have been satisfied at all relevant times.

7.3. Upon submission of application, an Applicant declares that:

(a) to the best of its knowledge, the conditions in clause 7.1 are or have been satisfied at all relevant times, and

(b) it took and will take all reasonable steps to ensure that the conditions in clause 7.1 are satisfied.

7.4. Notwithstanding any other provision in these Terms and Conditions, the NSW Government may take civil and/or criminal action (where appropriate), including referral to NSW Police, where it reasonably suspects that the Applicant has failed to comply with the law or these Terms and Conditions.

7.5. An Applicant must notify the NSW Government (via Service NSW) immediately if the Applicant ceases to trade, can no longer meet the eligibility criteria in clause 4, or can no longer comply with these Terms and Conditions.

7.6. An Applicant consents to being contacted by the NSW Government for a period of 24 months after receiving a payment under the Program for the purposes of reporting on and evaluating the Program. An Applicant agrees to provide any information that is reasonably required under this clause.

7.7. An Applicant consents to the NSW Government contacting the Applicant’s insurance company to confirm or verify, in relation to the Applicant:

(a) any payments they are entitled to under an insurance policy;

(b) the outcome of any claims made under an insurance policy;

8. Payments

8.1. Once an application has been approved, an Applicant will receive a single payment credited to a valid bank account (as identified in its application). Where possible, the payment will be made within 10 business days of an approved application.

8.2. Payments made in accordance with this clause will be made as act of grace payments under section 5.7(1) of the GSF Act.

8.3. The conditions in clause 7.1 are conditions that will be imposed by the Minister for Customer Service or his delegate on the making of the payment under section 5.7(2) of the GSF Act.

9. Recovery of payments

9.1. If an Applicant has received a payment under the Program and:

(a) subsequently receives a full or partial refund or credit note for any Eligible Expenses in respect of which the payment was made; and/or

(b) the NSW Government notifies the Applicant that it has reasonably formed the view that the Applicant has received such a refund or credit note,

the Applicant must repay that payment to the NSW Government to the extent of that refund or credit note.

9.2. If an Applicant has received a payment under the Program and the NSW Government is satisfied that the conditions in clause 7.1 were, or have been, contravened (including that the Applicant will not use the payment to cover Eligible Expenses), the payment or part of the payment may be recovered from the business by the Crown as debt due to the Crown, pursuant to section 5.7(3) of the GSF Act.

10. Suspension or termination of the Program

10.1. Notwithstanding any other provision in these Terms and Conditions, the NSW Government reserves the right to suspend or terminate the entirety or any part of the Program at any time.

10.2. Any action taken to suspend or terminate the Program will be notified on the Service NSW website.

11. Limitation of Liability

11.1. To the extent permitted by law, the NSW Government (including its officers, employees and agents) will not be liable for any direct, indirect, incidental, special or consequential loss or damage or for any death, illness, personal injury, financial loss or property damage however caused (including by negligence) which may be suffered or incurred by a business, organisation or any person arising directly or indirectly out of or in any way connected with the Program, including:

(a) any decision to make or refuse to make a payment under the Program, including on the basis that funds are unavailable,

(b) the fraudulent application for payments made under the Program,

(d) any decision to suspend or terminate the entirety or any part of the Program.

12. Indemnity

12.1. An Applicant agrees to indemnify and keep indemnified the NSW Government (including its officers, employees and agents) from and against any liability or loss (including reasonable legal costs and expenses), which may be suffered or incurred by any of those indemnified by reason of or in connection with the Applicant’s participation in the Program.

13. Contact

13.1. Any enquiry or complaint is to be directed to Service NSW via Service NSW Centres or by calling 13 77 88.

14. General

14.1. Applicants are responsible for obtaining their own independent legal and financial advice regarding these Terms and Conditions.

15. Variation

15.1. The NSW Government reserves the right to amend, vary, delete or supplement these Terms and Conditions at any time.

15.2. These Terms and Conditions, as amended, varied, deleted or supplemented from time to time, apply to any future version of, or update to, the IT system that supports the delivery of the Program.

16. Waiver

16.1. Failure by the NSW Government to enforce any of its rights at any stage does not constitute a waiver of those rights.

17. Severability

17.1. If any term in these Terms and Conditions is prohibited, void, voidable, illegal or unenforceable for any reason whatsoever, then that part is severed from these Terms and Conditions but without affecting the continued operation of the remaining Terms and Conditions.

18. Governing Law

18.1. These Terms and Conditions shall be governed by and must be interpreted in accordance with the laws of NSW. Applicant and the NSW Government submit to the exclusive jurisdiction of the Courts of NSW and any Court competent to hear appeals from those Courts.

19. Survival

19.1. Clauses 9, 11 and 12 contain continuing obligations and will survive termination of these Terms and Conditions.

Last updated: 17 January 2024