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Contents (1979 - 203)
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Environmental Planning and Assessment Act 1979 No 203
Historical version for 1 July 1998 to 9 July 1998 (accessed 27 January 2020 at 23:32) Current version
Part 4 Division 6
Division 6 Conditions requiring contributions towards public amenities and services
94   Payment towards provision or improvement of amenities or services
(1)  Subject to subsection (2), if a consent authority is satisfied that a development, the subject of a development application or of an application for a complying development certificate, will or is likely to require the provision of or increase the demand for public amenities and public services within the area, the consent authority may grant consent to that application subject to a condition requiring:
(a)  the dedication of land free of cost, or
(b)  the payment of a monetary contribution,
or both.
(2)  A condition referred to in subsection (1) is to be imposed only to require a reasonable dedication or contribution for the provision, extension or augmentation of the public amenities and public services mentioned in that subsection.
(3)  Subject to subsection (4), if:
(a)  a consent authority has, at any time, whether before or after the date of commencement of this Part, provided public amenities or public services within the area in preparation for or to facilitate the carrying out of development in the area, and
(b)  development, the subject of a development application or of an application for a complying development certificate, will, if carried out, benefit from the provision of those public amenities or public services,
the consent authority may grant consent to the application subject to a condition requiring the payment of a monetary contribution towards recoupment of the cost of providing the public amenities or public services.
(4)  A condition referred to in subsection (3) is, subject to any direction of the Minister under section 94E (1), to be imposed only to require a reasonable contribution towards recoupment of the cost referred to in subsection (3).
(5)  The consent authority may accept:
(a)  the dedication of land in part or full satisfaction of a condition imposed in accordance with subsection (3), or
(b)  the provision of a material public benefit (other than the dedication of land or the payment of a monetary contribution) in part or full satisfaction of a condition imposed in accordance with subsection (1) or (3).
(6)  The consent authority is to hold any monetary contribution paid in accordance with a condition referred to in subsection (1) (and any additional amount earned from its investment) for the purpose for which the payment was required and apply the money towards providing public amenities or public services or both within a reasonable time and in such a manner as will meet the increased demand for those amenities or services or both.
(7)  The consent authority is to apply any monetary contribution paid in accordance with a condition referred to in subsection (3), if the whole or any part of the cost incurred in providing the public amenities or public services with respect to which the contribution is paid remains unpaid, towards repayment of that cost.
(8)  Land dedicated in accordance with a condition imposed under subsection (1) or in part or full satisfaction of a condition imposed under subsection (3) is to be made available by the consent authority for the purpose of providing public amenities or public services or both within a reasonable time.
(9)  If a consent authority proposes to impose a condition in accordance with subsection (1) or (3) in respect of development, the consent authority must take into consideration any land or other sum of money that the applicant has elsewhere dedicated free of cost within the area or previously paid to the consent authority other than as a condition of the grant of consent under this Act.
(10)  If:
(a)  a condition imposed under subsection (1) or (3) in relation to development the subject of a development application has been complied with, and
(b)  a public authority would, but for this subsection, be entitled under any other Act to require, in relation to or in connection with that development, a dedication of land or payment of money in respect of the provision of public amenities or public services or both,
then, notwithstanding that other Act, compliance with the condition referred to in paragraph (a) is taken to have satisfied the requirement referred to in paragraph (b) to the extent of the value (determined, if the regulations so provide, in accordance with the regulations) of the land dedicated or the amount of money paid in compliance with the condition.
(11)  A council may impose a condition referred to in this section only if it is of a kind allowed by, and is determined in accordance with, a contributions plan approved under section 94B.
(12)  A condition of a kind allowed by a contributions plan may be disallowed or amended by the Court on appeal because it is unreasonable, even if it was determined in accordance with the plan.
(13)  This section does not apply to public amenities or public services comprising water supply or sewerage works.
94A   Section 94 conditions imposed by the Minister or Director
(1)  The Minister or the Director, as the consent authority determining a development application, may impose conditions under this Division if the application relates to:
(a)  land within a growth centre, or
(b)  other land within a single area.
(2)  This Division, as modified by this section, applies to the Minister or the Director determining such a development application as consent authority.
(3)  This Division applies to a development application relating to land within a growth centre as if references in this Division to the area were references to the growth centre.
(4)  Before imposing any condition under this Division, the Minister or the Director must have regard to any contributions plan approved under section 94B that applies to the whole or any part of the growth centre or area in which the relevant land is situated.
(5)  The Minister or the Director may impose a condition under this Division even though it is not of a kind allowed by, or is not in accordance with, a contributions plan.
(6)  Any monetary contribution paid in accordance with a condition under this Division imposed by the Minister or the Director:
(a)  must be paid by the Minister or Director to the corporation for the growth centre or the council of the area concerned, and
(b)  must (together with any additional amount earned from its investment) be applied within a reasonable time for the purpose for which it was levied.
(7)  This section applies to the Minister as consent authority whether or not the Minister is consent authority pursuant to section 88A.
(8)  In this section, growth centre means:
(a)  a growth centre, within the meaning of the Growth Centres (Development Corporations) Act 1974, or
(b)  a designated area, within the meaning of the Albury-Wodonga Development Act 1974.
94B   Contributions plans—making
(1)  A council may, subject to and in accordance with the regulations, prepare and approve a contributions plan for the purpose of imposing conditions referred to in this Division.
(2)  It is to be presumed, in the absence of evidence to the contrary, that all conditions and preliminary steps precedent to the making of a contributions plan have been complied with and performed.
94C   Contributions plans—judicial notice, validity etc
(1)  Judicial notice is to be taken of a contributions plan and of the date on which the plan came into effect.
(2)  The validity of any procedure required to be followed in making or approving a contributions plan is not to be questioned in any legal proceedings except those commenced in the Court by any person within 3 months of the date on which the plan came into effect.
(3)  The amendment or repeal, whether in whole or in part, of a contributions plan does not affect the previous operation of the plan or anything duly done under the plan.
94D   Contributions plans—complying development
(1)  In relation to an application made to an accredited certifier for a complying development certificate, a contributions plan:
(a)  is to specify whether or not the accredited certifier must, if a complying development certificate is issued, impose a condition of the kind referred to in this Division, and
(b)  can only authorise the imposition of a condition by an accredited certifier that requires the payment of a monetary contribution, and
(c)  if the contributions plan authorises the imposition of a condition by an accredited certifier that requires the payment of a monetary contribution, must specify the amount of the monetary contribution or the precise method by which the amount of the contribution is to be determined.
(2)  This section does not limit anything for which a contributions plan may make provision in relation to a consent authority.
94E   Directions by the Minister
(1)  The Minister may, generally or in any particular case or class of cases, direct a consent authority as to:
(a)  the public amenities and public services in relation to which a condition under this Division may or may not be imposed, and
(b)  in the case of a condition requiring the payment of a monetary contribution:
(i)  the means by which or the factors in relation to which the amount of the contribution may or may not be calculated or determined, and
(ii)  the maximum amount of any such contribution, and
(c)  the things which may or may not be accepted as a material public benefit.
(2)  A consent authority to which a direction is given under this section must comply with the direction in accordance with its terms.
(3)  A consent authority must not, in granting consent to a development application in relation to which a direction under this section applies, impose a condition that is not in accordance with the terms of the direction, despite the other provisions of this Division.