Posted on November 29, 2018 by Lindsay Taylor and Frances Richards

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.

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