Securities for enforcement of planning agreement and consent obligations

The Department of Planning and Environment has indicated that it is updating its policies and procedures for the safekeeping, release and monitoring of financial securities for enforcement of obligations under  conditions of development consent and planning agreements (PA’s). It has also informed the NSW Audit Office that it is developing the new policies and procedures.

The power to impose a condition of development consent requiring the provision of security is found in section 4.17 (6) of the Environmental Planning and Assessment Act 1979 (the Act).

The power to impose a condition on a complying development certificate requiring the payment of security is found in clause 136M of the Environmental Planning and Assessment Regulation (the Reg).

In both cases the security may be provided, at the applicant’s choice, in the form of a deposit or a guarantee (s 4.17 (8) of the Act and cl 136M (3) of the Reg).

The statutory framework for PA’s is found in the Act in Part 7 Division 7.1 Subdivision 2 and in the Reg in Part 4 Division 1A.

A Practice Note (2005) and a draft Practice Note (2016) have also been released under clause 25B  (2) of the Reg.

Most planning authorities have adopted policies and procedures concerning the use of PA’s. These policies usually provide for enforcement mechanisms for obligations under PA’s.

The Act does not prescribe any particular means of enforcing the obligations under a PA. The most suitable means depends on the facts and circumstances and the planning authority’s reasonable assessment of the risk and consequences of non-performance.

We have previously written about the policies and requirements for  security under PA’s on 8 December 2011 and 14 October 2015.

Once the Department’s new policies and procedures are published, other planning authorities, such as councils, may wish to consider using the new policies as a reference point for reviewing and updating their own policies and procedures for accepting, safekeeping, releasing and monitoring financial securities.


About dr lindsay taylor

Senior Partner. Lindsay is one of the leading planning, environment and local government lawyers in New South Wales with 25 years' specialist practice experience. During his career, Lindsay has worked within the legal branch of the Department of Planning and as in house solicitor for 2 metropolitan Sydney Councils. He has also spent 10 years as a partner in one of Australia's leading law firms, and was the transnational director of that firm's Planning, Environment and Local Government Law practice. Lindsay has extensive experience in planning and development law. He acts for a broad range of public and private sector clients on a range of matters, including major land release and development projects. He has unique expertise and experience relating to development contributions and planning agreements as well as climate change and ecologically sustainable development. Lindsay holds a PhD in law and economics from Macquarie University for a thesis which analysed the system of development contributions in New South Wales.
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