On 12 February 2021, the Planning Secretary issued a new Planning Agreement Practice Note (VPA Practice Note) under clause 25B(2) of the Environmental Planning and Assessment Regulations 2000 (EPA Regulations), replacing the Development Contributions – Practice Note – Planning Agreements (Former VPA Practice Note) issued on 19 July 2005. This clause provides guidance on the making, administration and negotiation of VPAs under section 7.4 of the Environmental Planning and Assessment Act (EPA Act). On the same day, the Environmental Planning and Assessment Amendment (Development Contributions) Regulations 2021 (Amendment Regulations) made numerous amendments to the EPA Regulations.
VPA Practice Note Differences to Former VPA Practice Note
The VPA Practice Note contains numerous differences from the Former VPA Practice Note; most notably:
- Providing specific guidance on offers to enter into VPAs,
- Providing specific guidance on developer’s obligations under a VPA through security for enforcement,
- Providing specific guidance on VPA registration,
- Providing specific guidance on re-notifications of draft VPAs where material changes are made post-public notice,
- Further details on the preparation of explanatory notes,
- Further detail on council’s policy and procedures for VPAs and what should be included,
- Providing clarity regarding the Department’s position on value capture,
- Emphasising the role of VPA’s in the broader strategic infrastructure planning framework,
- Emphasising that the benefits provided for under a VPA must not be exchanged for a variation from a development standard,
- Providing biodiversity offsetting as a specific example for when a VPA can be used,
- The removal of the VPA template.
Application of New VPA Practice Note and Amendment Regulations
The application of the VPA Practice Note is as follows:
- It does not apply to VPAs involved with mining projects, however, provides references to relevant parts to provide guidance for councils.
- Clause 25B(3) of the EPA Regulations, inserted by the Amendment Regulations, requires only councils to consider the VPA Practice Not when entering or negotiating VPAs.
- All planning authorities must consider the VPA Practice Note when preparing the explanatory not to a VPA under clause 25E(2) of the EPA Regulations, inserted by the Amendment Regulations,
Clause 27 of the Environmental Planning and Assessment (Savings, Transitional and Other Provisions) Regulations 2017 provides that clause 25B(3) of the EPA Regulations does not apply to new, amendment or revocation of an existing VPA if public notice was given under section 7.5 of the EPA Act before the issued date of the VPA Practice Note.
