Voluntary Planning Agreement (VPA)

The VPA report goes to Council on 11th November 2011. The report outlines that submissions were received from the West Ward Progress Association Dr. Ong and Jim McCredie however the Officer recommended the adoption of the exhibited report without change. Access to both Volumes of the Report can be here.: 

Full details from the report follow below:

Submissions relating to the exhibition are contained at Attachment 3 a summary of submissions follows:

Identified submissions were received from the Chatswood West Ward Progress Association, Dr Leonard Ong and Jim McCredie. Three comments were received on the Have Your Say section of Council’s website without identifying names or addresses.

The submissions expressed (to varying degrees) concern that development can occur (and could be seen to be being encouraged) that is not consistent with the existing planning controls. Such agreements increase the risk of conflicts of interest for Council officers and councillors and give rise to inconsistent decisions which vary the planning rules.

The Chatswood West Ward Progress Association submission states:

That this Association opposes the use of VPAs where LEP conditions are breached and that Council should uphold the conditions within their adopted LEPs.
It was also the meetings view that the concept of VPAs be reconsidered in the context of any new Planning Legislation.”

The submission from Dr Leonard Ong includes:
1. The difficulty of avoiding a special advantage to one developer over
2. The risks of variability.
3. The importance of objectivity and fairness.
4. Council should be responsible for community facilities.

The submission from Jim McCredie includes:
1. A VPA that breaches the LEP amounts to a conspiracy to violate the community LEP.
2. The acceptance of VPAs in support of spot rezoning violates the central purpose of zoning within an LEP.
3. The return from rezonings for developers is in excess of the cost of a VPA.

Comment on Submissions
The opposition to voluntary planning agreements and hence, the Draft Voluntary Planning Agreement Policy, is noted.

The regime for Voluntary Planning Agreements was introduced by the Environmental Planning and Assessment Amended (Development Contributions) Act 2005 and subsequent Regulations on 8 July 2005. The State Government has created this regime for all councils.
The intent of having a Council policy is to make explicit the terms on which a VPA might be entered into so that the community and applicants know Council’s approach and the public process that would be followed. Council does not have to enter a VPA. Each VPA proposal needs a resolution of Council after public debate in Council.
The draft VPA Policy does not advocate the trading of LEP variations for public benefits. As stated in the Council Report dated 16 September 2013:

“It is proposed that the Council’s use of voluntary planning agreements will be governed by the following principles:
a) Planning decisions will not be bought or sold through planning agreements.
d) Development that is unacceptable on planning grounds will not be permitted because of planning benefits offered by developers that do not make the development acceptable in planning terms.”

The planning legislation and Council’s WLEP 2012 already allows for a degree of flexibility in applying development standards to particular development. The variation of development standards (Clause 4.6 of the WLEP 2012) is enabled so long as the variation is justified by the applicant on the basis of adequate environmental planning grounds and demonstrating that compliance is ‘unnecessary and unreasonable’ in the circumstances. A VPA is not required for variations under Clause 4.6 of the WLEP 2012. The draft Policy states that significant variations should be sought by amending the WLEP 2012 not through the VPA process.

At present Council has entered into 2 VPAs:
1) For the site at Gore Hill Technology Park, where government owned land, the former ABC site, was rezoned from Special Uses. The VPA with the site developer followed an existing Memorandum of Understanding between the ABC and Council to provide community benefits (including heritage installation, site access and community facilities) as a result of the sale of government land.
2) Between Council and a Mandarin Centre restaurant operator, to provide a monetary contribution towards Council for additional car parking spaces to be built in the Albert Avenue Car park which could not be provided within the existing complex.

The new Planning Bill 2013, introduced into Parliament in late October 2013, provides for Planning Agreements in Division 7.5. Under the Bill, a Planning Agreement requires the developer to provide land / money towards ‘the provision of infrastructure that is identified in a local infrastructure plan’ (currently called a S.94 or S.94A Contributions Plan). This means that a Planning Agreement must relate to infrastructure identified by the Council in a local infrastructure plan prepared and publicly exhibited in accordance with the Act and any future regulations.

It is proposed that the VPA Policy be reviewed by Council after the new Planning Act and Regulations commence and State Government guidelines for VPAs are published, to consider the new provisions relating to Planning Agreements.

The Voluntary Planning Agreement Policy has been publicly exhibited. As stated in the Council Report dated 15 September 2013, the Policy seeks to reflect the Council’s position on the process for negotiation and potential basis for entering into a voluntary planning agreement which go beyond the statutory processes of the Environmental Planning and Assessment Act and Regulations.

Three identified submissions and three unidentified comments were received as outlined in the report and at Attachment 3.

It is recommended that Council adopt the Voluntary Planning Agreement Policy


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