development contributions planning agreements environmental planning and assessment act 1979 part 4,...
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Development Contributions
Planning Agreements
Environmental Planning and Assessment Act 1979 Part 4, Division 6, Subdivision 2
lindsaytaylorlawyersLevel 7, 1 O’Connell Street, Sydney NSW 2000, Australia
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Development ContributionsPlanning Agreements
Overview of legislation
S93F of the EPA Act provides that a planning agreement (PA) is a voluntary agreement between a planning authority and a developer that provides for the making of a contribution by the developer towards a public purpose in connection with development
Contributions can be in the form of monetary contributions, land dedication, public works, other material public benefits
A PA can be entered into in connection with a rezoning application or development application
All public authorities (including councils) are declared to be planning authorities by the EPA Regulation 2000
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Development ContributionsPlanning Agreements
Overview of legislation
A PA can exclude the application of s94 and s94A of the EPA Act to development
If s94 is not excluded, the PA must set out whether benefits under the PA are to be taken into account in determining s94 contributions in relation to development
A PA must be considered under s79C of the EPA Act in relation to a development application but only to the extent relevant
A development consent can be granted subject to a condition that a PA is entered into but only in terms of the offer made by a developer
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Development ContributionsPlanning Agreements
Overview of legislation
No requirement for nexus between the development to which a PA relates and the public purpose towards which a contribution under a PA is made
The planning merits of a PA cannot be subject of an appeal to the Land & Environment Court, nor can a planning authority’s refusal to enter into an agreement
However, the legality of a PA can determined by the Court
A breach of a PA can be enforced as if it were a breach of the EP&A Act
A PA may be registered on land title if all parties with interests in the land agree
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Development ContributionsPlanning Agreements
Overview of legislation
A PA cannot require a rezoning or development consent to occur or authorise a breach of the EP&A Act
An environmental planning instrument cannot expressly require a PA to be entered into before consent is granted
A consent authority cannot refuse to grant development consent to development consent solely because a PA is not entered into
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Development ContributionsPlanning Agreements
Overview of legislation
A PA must be in writing and signed by the parties
A PA is not entered into until it is signed by all parties
Public notice is required to be given before a PA is entered into, amended or revoked
A PA must be publicly notified, if practicable, as part of and contemporaneously with, and in the same manner as the rezoning application to which it relates, otherwise as soon as possible afterwards
A PA must be publicly notified as part of and contemporaneously with, and in the same manner as the DA application to which it relates
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Development ContributionsPlanning Agreements
Overview of legislation
A PA can be amended or revoked by a subsequent agreement in writing signed by the parties
The Minister may give directions about PA procedures or standard requirements
The D-G may issue practice notes relating to the preparation of PAs
Information about PAs must be given to the Minister and a council if they are not party to the agreement
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Development ContributionsPlanning Agreements
Development contributions under planning agreements
Public purposes towards which contributions may be made include (but are not limited to):
– Providing (or recouping the cost of providing) public facilities
– Providing (or recouping the cost of providing) affordable housing
– Providing (or recouping the cost of providing) transport or other infrastructure relating to land
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Development ContributionsPlanning Agreements
Development contributions under planning agreements
Public purposes towards which contributions may be made include (but are not limited to):
– the funding of recurrent expenditure
– the monitoring of planning impacts of development
– the conservation or enhancement of the natural environment
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Development ContributionsPlanning Agreements
Mandatory contents of planning agreements
Parties to the planning agreement
Description of land
Description of proposed rezoning or development
Details of contributions to be made
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Development ContributionsPlanning Agreements
Mandatory contents of planning agreements
Whether the agreement excludes the application of s94 or s94A to development
If s94 is not excluded, whether the benefits under the PA are to be taken into consideration in calculating s94 contributions
Dispute resolution mechanism
Enforcement mechanism, such as bond or bank guarantee
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Development ContributionsPlanning Agreements
Typical process for entering into a PA with a DA
– Step 1 – pre-application negotiations with consent authority and any other parties re DA and PA
– Step 2 – agreement on terms of draft PA, documentation of PA and explanatory note (EN)
– Step 3 – DA lodged with consent authority together with developer’s offer to enter into PA if consent is granted
– Step 4 – consent authority consults public authorities about the DA and draft PA
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Development ContributionsPlanning Agreements
Typical process for entering into a PA with a DA
– Step 5 – DA, draft PA and EN are publicly exhibited, submissions considered
– Step 6 - DA and PA are considered and determined by the consent authority; if consent is granted, a condition is imposed requiring the PA to be entered into
– Step 7 – PA is entered into
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Development ContributionsPlanning Agreements
Some advantages of planning agreements
Particularly suited to large development projects in single ownership, and development requiring a rezoning
Enables all parties to negotiate specific planning outcomes
Gives stakeholders the ability to re-distribute the costs and benefits of development
Provides a mechanism to address planning issues that may prevent projects proceeding
Allows for the creation of a flexible pool of contributions
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Development ContributionsPlanning Agreements
Potential uses of planning agreements
Providing compensation for loss of public facilities or damage to public works caused by development
Addressing the potential impacts of development that might prevent development consent being granted
Providing for new or enhanced public facilities to meet development
Prescribing inclusions in development, such as affordable housing
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Development ContributionsPlanning Agreements
Potential uses of planning agreements
Securing the recurrent funding of public facilities
Co-ordinating and managing contributions from major development
Manage specific environmental outcomes
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Development ContributionsPlanning Agreements
Actual uses of planning agreements to date
Providing up-front seed-funding for new infrastructure, such as water supply and sewerage works, drainage works, roads, etc in order to allow development to proceed,
Providing restitution, from s94 contributions or s94A levies, for developers who seed-funded new infrastructure
Providing for the protection and management of environmentally sensitive land and flora and fauna habitats, e.g., through dedication of land as a national park, nature reserve, etc., biodiversity bank or environmental trust fund arrangements
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Development ContributionsPlanning Agreements
Actual uses of planning agreements to date
Providing for the construction and hand-over of public works by developers
Providing for the public use of private facilities (e.g., car parking, community facilities)
Providing for the private maintenance of public land (e.g., open space, roads)
Providing for the relocation and enhancement of public facilities in connection with development
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Development ContributionsPlanning Agreements
Actual uses of planning agreements to date
Providing a public benefit through the limitation or surrender of development opportunities over land
Providing for the early commencement of development which involves the provision of a public benefit
Providing affordable housing contributions as a percentage levy based on development cost
Providing for royalty payments to fund the maintenance of haulage roads
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Development ContributionsPlanning Agreements
Actual uses of planning agreements to date
Providing for the valuation of non-monetary public benefits in order to provide for credits and offsets against 94 contributions
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Questions?
lindsaytaylorlawyersLevel 7, 1 O’Connell Street, Sydney NSW 2000, Australia
T 02 8235 9700 F 02 8235 9799 W www.lindsaytaylorlawyers.com.au E [email protected] 15 695 894 345