Posted on February 24, 2011 by Frances Tse
Planning Agreements Given Further Legal Force
On and from 25 February 2011, planning agreements will be given further legal force through amendments to be made to the Environmental Planning and Assessment Act 1979 (EPA Act) and the Environmental Planning and Assessment Regulation 2000 (EPA Reg).
The amendments will prevent certifying authorities from issuing construction, subdivision or occupation certificates (Part 4A certificates) in respect of a development, if a planning agreement requires certain obligations to be met before such a certificate is issued, and those obligations have not been met (Part 4A certificate provision). The amendments will affect most planning agreements, which in practice, generally fix the timing of the making of development contributions by reference to the issue of such certificates.
One implication of this change is that a breach of a Part 4A certificate provision will be a ground to challenge the validity of the Part 4A certificate. For example, in the case of a construction certificate, if a construction certificate were declared invalid by a court because of the failure to comply with the Part 4A certificate provision, the Land and Environment Court could order that work carried out be demolished. In other words, Part 4A certificate provisions will effectively offer an additional lever to secure contributions offered under the planning agreement.
The amendments will enable certifying authorities to require applicants for construction, subdivision and occupation certificates to provide information concerning a planning agreement and give planning authorities that are parties to planning agreements the power to certify that specified requirements of a planning agreement have been complied with.
Also, in respect of planning agreements which are to be exhibited after 25 February 2011, the explanatory note which is required to accompany the planning agreement must indicate whether the planning agreement specifies that certain requirements of the agreement must be complied with before a construction, subdivision or occupation certificate is issued.
Any explanatory notes which are currently being prepared, and explanatory notes for planning agreements which have not yet been exhibited, should be modified to have regard to the new requirements.