Voluntary Planning Agreements

Voluntary planning agreements are one of the methods developers can use to contribute to funding the public infrastructure required to support new development and population growth. The inclusion of voluntary planning agreements (VPAs) within the Environmental Planning and Assessment Act 1979 (section 93F), was part of a developer contribution system reform which occurred during 2005.

VPAs are contractual agreements between developers and planning authorities, by which developers undertake to make contributions for a “public purpose” such as:

• public amenities and public services
• affordable housing
• transport or other infrastructure.

Contributions can be made through:

• dedication of land
• monetary contributions
• construction of infrastructure
• provision of materials for public benefit and/or use.

Voluntary Planning Agreements cannot be entered into unless public notice has been given and an explanatory note is made available for inspection for at least 28 days.

Council’s policy for assessing, negotiating and governing VPAs is provided below.

Council’s policy for assessing and managing any Voluntary Planning Agreements is to implement the relevant legislative provisions contained within the NSW Environmental Planning and Assessment Act 1979 and Regulation and related Practice Notes issued or amended by the NSW Government.

• Department of Planning and Infrastructure – Practice Note July 2005

In addition Council will adhere to the following adopted negotiation and governance framework when implementing Voluntary Planning Agreements.

Voluntary Planning Agreement Negotiation Procedure

Where a developer makes an offer in writing to enter into a Voluntary Planning Agreement with Council and Council accepts the offer in principle the following steps will be followed:

1. The parties will decide whether to appoint an independent party to facilitate or otherwise participate in the negotiations or aspects of it, and appoint such a party.


2. The parties will agree on a timetable for negotiations and the protocols and work practices governing their negotiations.


3. The parties will then identify the key issues for negotiation and the key deliverables and undertake the negotiations, this will include Council (or independent party) implementing the acceptability test, at this point preliminary consultations with relevant public authorities will occur.


4. If agreement on the general contributions to be offered is reached, the developer will prepare a Draft VPA including the explanatory note (required by legislation) and provide a copy to Council (and/or the appointed independent party).


5. Once agreement is reached on the specific terms of the proposed planning agreement, the developer may then make the relevant offer to Council (and/or the appointed independent party) accompanied by a copy of the proposed agreement.


6. The proposed agreement and explanatory note will be notified and exhibited together with the relevant draft application or Planning Proposal.


7. Submissions will be considered and further amendments to the proposed agreement may be negotiated. As a result of submissions further negotiations may need to be undertaken and a number of the above steps may need to be repeated.


8. If any consequential amendments are made to the VPA after exhibition it must be re-notified and re-exhibited.


9. The Agreement is entered into once both parties finalise any amendments and according to when the agreement should be activated through a development consent or the making of an LEP amendment.

Governance Arrangements for Voluntary Planning Agreements

The following steps have been adopted as specific measures to maintain, transparency and accountability throughout the VPA process:

1. Only the General Manager has the authority to agree to an offer of a VPA and negotiate a planning agreement on behalf of Council. However, in some instances an independent third party may be appointed to carry out negotiations. The costs of this will be borne by the developer.


2. Councillors will not be involved in the face-to-face negotiation of voluntary planning agreements.


3. Council will appoint an independent person to facilitate or otherwise advise in the negotiation of a planning agreement, or aspects of it, where:
   
   
   1. Council has a commercial interest in the subject matter of a planning agreement as a landowner, developer or financier;
   
   
   2. an independent assessment of a proposed local environment plan change or development application is necessary or desirable;
   
   
   3. factual information requires validation in the course of negotiations;
   
   
   4. sensitive financial or other information must be verified or established in the course of negotiations;
   
   
   5. facilitation of complex negotiations are required in relation to large projects or where numerous parties or stakeholders are involved; or
   
   
   6. dispute resolution is required.