Posted on June 26, 2014 by
Imposing developer charges for water and sewer works: A refresher
Non-metropolitan councils can require developers to make contributions for water supply, sewerage and stormwater headworks in respect of development. However, the legislative basis for the imposition of such charges is not straightforward, and is worthwhile reviewing.
There is no power under the Environmental Planning and Assessment Act 1979 to require payment of development contributions for water supply and sewerage works. The power to require such contributions arises from a combination of the Local Government Act 1993 (LG Act) and Water Management Act 2000 (WM Act).
Section 64 of the LG Act provides that:
Division 5 of Part 2 of Chapter 6 of the Water Management Act 2000 applies to a council exercising functions under this Division in the same way as it applies to a water supply authority exercising functions under that Act.
Under s59A(1) of the LG Act, a council is the owner of all water supply, sewerage and stormwater drainage works and facilities (W & S Works) installed in or on land by it, irrespective of whether or not it owns the land. Section 59A(2) gives Councils functions in relation to W & S Works, for the purpose of ensuring that, in the opinion of the council, works are used in an efficient matter for the purposes for which they were installed.
Division 5 of Part 2 of Chapter 6 of the WM Act is headed ‘Developer contributions for the construction of works’. ‘Works’ are defined to include water supply works, sewerage works, drainage works and flood works.
Sections 305-307 deal with the circumstances in which a water supply authority may grant a certificate of compliance in respect of development, and includes a power to require the payment of contributions for existing or projected works, or both.
The effect of 59A(2) and 64 of the LG Act is that a council can require a developer to obtain a certificate of compliance for development before connecting to council’s water supply or sewerage system.
A council can require a developer to obtain a certificate of compliance for development consisting of the erection, enlargement or extension of a building or the placing or relocating of a building on land, the subdivision of land, the change of use of land or of any building situated on the land.
A council cannot impose a condition on a development consent requiring payment of a specified amount as a contribution for W & S Works. This is because the power to impose conditions on a development consent is derived from the EPA Act, and there is no power under that Act to impose a condition of this kind.
However, it is possible for a council to impose a condition on a development consent requiring a certificate of compliance under the WM Act to be obtained, at least where the arrangements for water and sewer are matters for proper consideration under s79C of the EPA Act.