Posted on March 8, 2011 by Lindsay Taylor

The No Man’s Land of s94 Contribution Planning

The NSW Government is now in caretaker mode pending the election on 26 March 2011. It has gone to the election without new Part 5B of the Environmental Planning and Assessment Act 1979 having commenced.

Part 5B is set out in Schedule 3(6) of the Environmental Planning and Assessment Amendment Act 2008. Part 5B will be inserted into the 1979 Act and become operative when Schedule 3(6) is proclaimed to commence.

The 2008 Act was assented to on 25 June 2008. Since then, there has been much anticipation by councils, local communities and the development industry and several false starts by the NSW Government regarding its commencement.

Amongst other things, Part 5B requires changes to the contents of contributions plans. This means that contributions plans made under the existing law and under Part 5B are different.

Many councils have prepared for the commencment of Part 5B by preparing contributions plans in accordance with Part 5B requirements even though Part 5B has not commenced. Others have ‘hedged their bets’ by preparing plans that are said to satisfy both the existing and new contributions planning requirements. In some cases, this has been done based on external professional advice.

My view is that a Part 5B contributions plan cannot be lawfully publicly exhibited or made unless and until Part 5B commences.

Without Part 5B being in force at the time a draft contributions plan is publicly exhibited, the public exhibition of a part 5B plan will amount to nothing legally. It will not be a valid step in the making of a contributions plan either under the existing law or under Part 5B (if and when it later comes into force). The plan, when made, would be liable to be set aside by the Land and Environment Court as not having been made in accordance with the procedures required by the Act. Conceivably, its making could be restrained by the Court.

In circumstances where Part 5B has not commenced, Councils need to decide whether to make a contributions plan under the existing law or to wait to commence the process if and when Part 5B commences. 

Although the circumstances of each council will be unique, all other things being equal, I would have thought that a contributions plan should be prepared under the existing law. This is because, if Part 5B ever commences, it is likely that there will be savings and transitional provisions which continue the plan in force under the new law for a period of time during which the changeover to a Part 5B plan can occur (see for example, proposed clause 130 in Schedule 6 of the 1979 Act).