Posted on April 14, 2020 by Frances Tse 1

Does a VPA need to be publicly notified together with a DA?

Is it mandatory for a voluntary planning agreement (VPA) under s7.4 of the Environmental Planning and Assessment Act 1979 (EPA Act) to be publicly notified contemporaneously with the development application, or the planning proposal to which it relates?

This question was considered by the Land and Environment in Omaya Investments Pty Limited v Dean Street Holdings Pty Ltd (No.5) [2020] NSWLEC 9 (Omaya).

Before a VPA can be entered into, s7.5(1) of the EPA Act requires it to be publicly notified for at least 28 days. Additionally, cl25D(1) of the Environmental Planning and Assessment Regulation 2000 (EPA Reg), requires the public notification to be given:

• if practicable, as part of and contemporaneously with, and in the same manner as, any notice of the development application or planning proposal that is required to be given under the EPA Act, or
• if it is not practicable for notice to be given contemporaneously, as soon as possible after any notice of the development application or planning proposal  and in the manner determined by the planning authorities that are parties to the agreement.

In Omaya, a VPA was publicly notified and entered into in connection with a DA. The general timeline of events was as follows:

• July 2015 – DA lodged
• December 2015 to January 2016 – proposed VPA is publicly notified
• March 2016 – Development consent to DA is granted containing a condition requiring a VPA to be entered into
• February 2019 – Council and developer recognise a need to amend the proposed VPA and commences the process of negotiating and making amendments
• July to August 2019 – amended proposed VPA is publicly notified
• October 2019 – VPA is executed.

The VPA that was ultimately executed was publicly notified more than 3 years after the development consent to which it related was granted and 4 years after the DA was lodged.

The Applicant in the case argued that it was a mandatory statutory requirement for a VPA to be notified contemporaneously with the DA and because there was no compelling reason why the VPA that was ultimately executed was not so notified,  there was a breach of the EPA Act and the VPA was invalid.

The Applicant also argued that the amended proposed VPA was not notified as soon as practicable after the Council became aware of the need for an amendment to the proposed VPA.

The Court did not accept any of the Applicant’s argument. Looking at the words of the legislation the Court held that:

1. The only mandatory requirement in relation to public notification is that a VPA cannot be entered into unless public notice has been given and that a copy of the proposed VPA is available for inspection for a period of not less than 28 days.
2. The manner and timing of the public notice provided for in the EPA Reg is not mandatory, and is flexible and in particular, it is not mandatory for a VPA to be notified contemporaneously with a DA.
3.  In this case, the original version of the VPA was in fact publicly notified concurrently with the DA – there was no irregularity with the fact that the proposed VPA was subsequently amended before it was executed or the re-notification of the amended proposed VPA.
4. The amended proposed VPA was notified as soon as possible after the amendments were made and there was evidence to show that the time taken to make the changes and notify the amended VPA were not unreasonable.
5. It was clearly not practicable to notify the amended VPA contemporaneously with the DA because the amendments were not known at the time the DA was notified. The Court was satisfied that the VPA that was ultimately executed was notified as soon as possible after the DA notification.

In our experience, VPAs are often not able to be publicly notified contemporaneously with DAs or planning proposals for reasons including that offers and negotiations for VPAs may arise later in the planning process, or the time taken for the parties to agree on the terms of the VPA may extend past the time when public notification of the relevant DA or planning proposals occurs.

The judgment in Omaya provides some comfort that provided that the parties are acting reasonably, a VPA will not be invalid due to a delay in public notification.

The key practical messages arising from Omaya in our view are:

1. If a VPA has been negotiated and agreed in connection with a DA or a planning proposal and it is practicable to publicly notify it contemporaneously with the DA or planning proposal then it should be so notified.
2. If it is not practicable to notify a VPA contemporaneously with a DA or a planning proposal then the parties should ensure they have a reasonable basis for not doing so (for example, because negotiations haven’t concluded, or an offer for a VPA was received after that time).
3. Once a decision has been made to prepare a VPA, the parties should progress the preparation of it in a reasonable manner and notify the proposed VPA as soon as possible.

The case can be found on the NSW Caselaw website here.

Please contact Frances Tse on 8235 9711 if you wish to discuss.