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Contents (1979 - 203)
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Environmental Planning and Assessment Act 1979 No 203
Current version for 25 August 2017 to date (accessed 22 September 2017 at 10:52)
Part 4 Division 6 Subdivision 3
Subdivision 3 Local infrastructure contributions
94   Contribution towards provision or improvement of amenities or services
(1)  If a consent authority is satisfied that development for which development consent is sought 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 the development consent 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) may be imposed only to require a reasonable dedication or contribution for the provision, extension or augmentation of the public amenities and public services concerned.
(3)  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 for which development consent is sought will, if carried out, benefit from the provision of those public amenities or public services,
the consent authority may grant the development consent subject to a condition requiring the payment of a monetary contribution towards recoupment of the cost of providing the public amenities or public services (being the cost as indexed in accordance with the regulations).
(4)  A condition referred to in subsection (3) may be imposed only to require a reasonable contribution towards recoupment of the cost concerned.
(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)  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, money or other material public benefit that the applicant has elsewhere dedicated or provided free of cost within the area (or any adjoining area) or previously paid to the consent authority, other than:
(a)  a benefit provided as a condition of the grant of development consent under this Act, or
(b)  a benefit excluded from consideration under section 93F (6).
(7)  If:
(a)  a condition imposed under subsection (1) or (3) in relation to development 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, despite 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.
94A   Fixed development consent levies
(1)  A consent authority may impose, as a condition of development consent, a requirement that the applicant pay a levy of the percentage, authorised by a contributions plan, of the proposed cost of carrying out the development.
(2)  A consent authority cannot impose as a condition of the same development consent a condition under this section as well as a condition under section 94.
(2A)  A consent authority cannot impose a condition under this section in relation to development on land within a special contributions area without the approval of:
(a)  the Minister, or
(b)  a development corporation designated by the Minister to give approvals under this subsection.
(3)  Money required to be paid by a condition imposed under this section is to be applied towards the provision, extension or augmentation of public amenities or public services (or towards recouping the cost of their provision, extension or augmentation). The application of the money is subject to any relevant provisions of the contributions plan.
(4)  A condition imposed under this section is not invalid by reason only that there is no connection between the development the subject of the development consent and the object of expenditure of any money required to be paid by the condition.
(5)  The regulations may make provision for or with respect to levies under this section, including:
(a)  the means by which the proposed cost of carrying out development is to be estimated or determined, and
(b)  the maximum percentage of a levy.
94B   Section 94 or 94A conditions subject to contributions plan
(1)  A consent authority may impose a condition under section 94 or 94A only if it is of a kind allowed by, and is determined in accordance with, a contributions plan (subject to any direction of the Minister under this Division).
(2)  However, in the case of a consent authority other than a council:
(a)  the consent authority may impose a condition under section 94 or 94A even though it is not authorised (or of a kind allowed) by, or is not determined in accordance with, a contributions plan, but
(b)  the consent authority must, before imposing the condition, have regard to any contributions plan that applies to the whole or any part of the area in which development is to be carried out.
(3)  A condition under section 94 that is of a kind allowed by a contributions plan (or a direction of the Minister under this Division) may be disallowed or amended by the Court on appeal because it is unreasonable in the particular circumstances of that case, even if it was determined in accordance with the relevant contributions plan (or direction). This subsection does not authorise the Court to disallow or amend the contributions plan or direction.
(4)  A condition under section 94A that is of a kind allowed by, and determined in accordance with, a contributions plan (or a direction of the Minister under this Division) may not be disallowed or amended by the Court on appeal.
94C   Cross-boundary issues
(1)  A condition may be imposed under section 94 or 94A for the benefit (or partly for the benefit) of an area that adjoins the local government area in which the development is to be carried out.
(2)  Any monetary contribution that is required to be paid under any such condition is to be apportioned among the relevant councils:
(a)  in accordance with any joint or other contributions plan approved by those councils, or
(b)  if provision is not made for the apportionment in any such plan—in accordance with the terms of the development consent for the development.
(3)  Any dispute between the councils concerned is to be referred to the Secretary and resolved in accordance with any direction given by the Secretary.
94CA   Public service or public amenity may be provided outside NSW
A condition may, with the written approval of the Minister, be imposed under section 94 or 94A for the provision of a public amenity or public service on land in another State or Territory if the area in which the development the subject of the condition is to be carried out adjoins the other State or Territory.
94D   Section 94 or 94A conditions imposed by Minister or Secretary in growth centres, council areas etc
(1)  This section applies where the Minister or the Secretary, as the consent authority, imposes conditions under section 94 or 94A in relation to:
(a)  land within a growth centre, or
(b)  other land within one or more council areas.
(2)  This Division applies to land within a growth centre as if references in this Division to the area were references to the growth centre.
(3)  Any monetary contribution paid in accordance with a condition under section 94 or 94A:
(a)  must be paid by the Minister or Secretary to the corporation for the growth centre or to the councils of the areas 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.
(4)  This section applies to the Minister as consent authority whether or not the Minister is the consent authority because it is State significant development.
(5)    (Repealed)
94E   Directions by 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 section 94 may or may not be imposed, and
(b)  in the case of a condition under section 94 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 that may or may not be accepted as a material public benefit for the purposes of a condition under section 94, and
(d)  the type or area of development in respect of which a condition under section 94A may be imposed and the maximum percentage of the levy, and
(e)  the use of monetary contributions or levies for purposes other than those for which they were paid, and
(f)  the preparation of joint contributions plans by two or more councils.
(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 development consent 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 and despite the provisions of any contributions plan.
94EA   Contributions plans—making
(1)  A council, or two or more councils, may, subject to and in accordance with the regulations, prepare and approve a contributions plan for the purpose of imposing conditions under this Division (other than Subdivision 4).
(2)  If a contributions plan authorises the imposition of conditions under section 94A, the plan is to specify the type or area of development in respect of which a condition under section 94A may be imposed and is to preclude the imposition of a condition under section 94 in respect of that type or area of development.
(2A)  A contributions plan does not authorise the imposition of a condition under section 94 on a grant of development consent if the public amenities or public services to which that condition relates are, in whole or in part, infrastructure provided, or to be provided, in relation to the development out of contributions collected under Subdivision 4.
(3)  The regulations may make provision for or with respect to the preparation and approval of contributions plans, including the format, structure and subject-matter of plans.
(4)  A council is, as soon as practicable after approving a contributions plan, to provide the Minister with a copy of the plan.
94EAA   Contributions plans—making, amendment or repeal by Minister
(1)  The Minister may direct a council, in writing, to approve, amend or repeal a contributions plan in the time and manner specified in the direction.
(2)  The Minister may make, amend or repeal a contributions plan if:
(a)  a council fails to approve, amend or repeal the plan in accordance with a direction of the Minister under this section, or
(b)  a council consents in writing to the Minister making, amending or repealing the plan.
The plan, the amended plan or the repeal of the plan has effect as if it had been approved, amended or repealed by the council.
(3)  The Minister in making, amending or repealing a contributions plan under this section is not subject to the regulations.
(4)  A person cannot appeal to the Court under this Act in respect of:
(a)  the making, amending or repealing of a contributions plan by or at the direction of the Minister under this section, or
(b)  the reasonableness in the particular circumstances of a condition under section 94 that is determined in accordance with any such contributions plan,
despite section 94B (3) or any other provision of this Act.
94EB   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)  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.
(3)  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 after the date on which the plan came into effect.
(4)  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.
94EC   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 under section 94 or 94A, and
(b)  can only authorise the imposition by an accredited certifier of a condition under section 94 that requires the payment of a monetary contribution, and
(c)  must specify the amount of the monetary contribution or levy that an accredited certifier must so impose or the precise method by which the amount is to be determined.
(1A)  The imposition of a condition by an accredited certifier as authorised by a contributions plan is subject to compliance with any directions given under section 94E (1) (a), (b) or (d) with which a council would be required to comply if issuing the complying development certificate concerned.
(2)  This section does not limit anything for which a contributions plan may make provision in relation to a consent authority.
(3)  The regulations may make provision for or with respect to anything for which a contributions plan may make provision under this section (being provisions that apply despite anything to the contrary in the contributions plan). The regulations may provide that the amount of a monetary contribution or levy be determined in a manner and by a person or body authorised by the regulations.