New South Wales Consolidated Acts

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Planning agreements

7.4 Planning agreements

(cf previous s 93F)

(1) A planning agreement is a voluntary agreement or other arrangement under this Division between a planning authority (or 2 or more planning authorities) and a person (the
"developer" )--
(a) who has sought a change to an environmental planning instrument, or
(b) who has made, or proposes to make, a development application or application for a complying development certificate, or
(c) who has entered into an agreement with, or is otherwise associated with, a person to whom paragraph (a) or (b) applies,
under which the developer is required to dedicate land free of cost, pay a monetary contribution, or provide any other material public benefit, or any combination of them, to be used for or applied towards a public purpose.
(2) A public purpose includes (without limitation) any of the following--
(a) the provision of (or the recoupment of the cost of providing) public amenities or public services,
(b) the provision of (or the recoupment of the cost of providing) affordable housing,
(c) the provision of (or the recoupment of the cost of providing) transport or other infrastructure relating to land,
(d) the funding of recurrent expenditure relating to the provision of public amenities or public services, affordable housing or transport or other infrastructure,
(e) the monitoring of the planning impacts of development,
(f) the conservation or enhancement of the natural environment.
(3) A planning agreement must provide for the following--
(a) a description of the land to which the agreement applies,
(b) a description of--
(i) the change to the environmental planning instrument to which the agreement applies, or
(ii) the development to which the agreement applies,
(c) the nature and extent of the provision to be made by the developer under the agreement, the time or times by which the provision is to be made and the manner by which the provision is to be made,
(d) for development--whether the agreement wholly or partly excludes the application of the following provisions--
(i) section 7.11,
(ii) section 7.12,
(iii) Division 7.1, Subdivision 4,
(e) if the agreement does not exclude the application of section 7.11 to the development, whether benefits under the agreement are or are not to be taken into consideration in determining a development contribution under section 7.11,
(f) a mechanism for the resolution of disputes under the agreement,
(g) the enforcement of the agreement by a suitable means, such as the provision of a bond or guarantee, in the event of a breach of the agreement by the developer.
(3A) A planning agreement cannot exclude the application of section 7.11 or 7.12 in respect of development unless the consent authority for the development or the Minister is a party to the agreement.
(4) A provision of a planning agreement in respect of development is not invalid by reason only that there is no connection between the development and the object of expenditure of any money required to be paid by the provision.
Note : See section 7.3(1), which requires money paid under a planning agreement to be applied for the purpose for which it was paid within a reasonable time.
(5) If a planning agreement excludes the application of section 7.11 or 7.12 to particular development, a consent authority cannot impose a condition of development consent in respect of that development under either of those sections (except in respect of the application of any part of those sections that is not excluded by the agreement).
(5A) A planning authority, other than the Minister, is not to enter into a planning agreement excluding the application of Division 7.1, Subdivision 4 without the approval of--
(a) the Minister, or
(b) a development corporation designated by the Minister to give approvals under this subsection.
(6) If a planning agreement excludes benefits under a planning agreement from being taken into consideration under section 7.11 in its application to development, section 7.11(6) does not apply to any such benefit.
(7) Any Minister, public authority or other person approved by the Minister is entitled to be an additional party to a planning agreement and to receive a benefit under the agreement on behalf of the State.
(8) A council is not precluded from entering into a joint planning agreement with another council or other planning authority merely because it applies to any land not within, or any purposes not related to, the area of the council.
(9) A planning agreement cannot impose an obligation on a planning authority--
(a) to grant development consent, or
(b) to exercise any function under this Act in relation to a change to an environmental planning instrument.
(10) A planning agreement is void to the extent, if any, to which it requires or allows anything to be done that, when done, would breach this section or any other provision of this Act, or would breach the provisions of an environmental planning instrument or a development consent applying to the relevant land.
(11) A reference in this section to a change to an environmental planning instrument includes a reference to the making or revocation of an environmental planning instrument.

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