A recent decision of the Supreme Court of New South Wales highlights difficulties that can arise in assessing benefits in kind under agreements between a board and a developer under section 94(5)(b) of the Environmental Planning and Assessment Act 1979 (EPA Act). A person who has entered into a WIK agreement to discharge a liability of the CMIU is deemed to have paid the Commissioner an amount equal to the agreed value of what was provided in whole or in part. The court held that there was no reason to conclude that the parties intended the construction of the reservoir to be considered part of the construction of the access road. As a result, the proponent would be entitled to a credit note in respect of its contribution liability under section 94 for work that was to be performed under separate consent conditions. In addition, the construction of the reservoir was not included in the description of the work as part of the Commission`s contribution plan, so the Commission could not accept the construction of the reservoir under an in-kind contribution agreement. It also requires the opening of 119.24 hectares of protected land and the provision of endowment funds of approximately $1 million (plus indexation) for this environmental corridor. The agreement also requires the proponent to maintain the following facilities for five years after completion: The planning agreement requires a number of utilities in the form of a land dedication, capital works and cash contributions, including: A person who has entered into a WIK agreement to fulfill the responsibility of the GAIC must notify the Victorian Planning Authority in writing of: Section 94(5)(b) of the EPA Act provides that a receiving authority may accept the supply of an important public good (usually works) in full or partial compliance with a condition requiring development contributions in accordance with section 94(1) or (3). As this case demonstrates, when preparing in-kind contributions, care must be taken to ensure that the evaluation process and the appropriate scope of work are clearly defined. If this is not the case, it could have an impact on a Council`s ability to compensate for any lack of contributions to development. A condition set out in Article 7.11 may be fulfilled „in kind“ by a benefit in kind (WIK) between the applicant and the Council. A WIK agreement cannot provide for the allocation of land to meet a condition under Article 7.11. Developers/applicants may submit a WIK proposal which will be evaluated in accordance with our WIK policy.

WIK`s proposals will be forwarded to our Finance Committee for review in accordance with section 7.11. The proposal must relate to work (or part-time work) listed in our contribution plans under section 7.11. We have developed a WIK agreement template to accelerate this process. This model should be used for WIK arrangements. While „trade“ does not include activities approved under the WIK Agreement, it does include entering into a sale, transaction or agreement, or obtaining or granting leases, licenses or permits in respect of the land or the continuous improvement of the land. The land or work must be located in a growth area of a type that can be funded by the Growth Areas Transit Fund or the New Communities Building Fund. WIK applications must be submitted to the Victorian Planning Authority, which can further assist you with your application. You can also find model WIK agreements and WIK guidelines on the Victorian Planning Authority website and on the Department of Environment, Land, Water and Planning (DELWP) website. A substantive agreement (WIK agreement) is an agreement between a person who is required to pay the Infrastructure Contribution for Growth Areas (GAIC) and the Minister of Planning.

Under a WIK agreement, the responsible person agrees to provide land and/or works (construction of public infrastructure) instead of a cash payment to meet his or her GAIC liability, in whole or in part. On the basis of an assessment of the access road works made available to the Council, the Council brought an action, claiming that the developer was required to pay it an outstanding amount of USD 729 680 for development contributions. The developer contested the obligation to pay this amount on the grounds that the evaluation of the works was too low and had not been carried out effectively in accordance with WIKA. Rockdale City Council v Calibre Construction Corp Pty Ltd [2015] NSWSC 1980 concerned a dispute concerning the estimated value of the contribution of an access road built by a developer under a substantive agreement (WIKA). The value of the work was to partially satisfy a condition of approval that required the payment of development contributions under section 94 of the EPA Act. The parties to a WIK agreement include the responsible person, the Minister of Planning, and they may also include other parties such as other government ministers and the landowner. Despite the delay, the person remains liable under the WIK Agreement for the performance of his obligations under the contract. Development agreements are entered into in relation to a development application or a change to the local environmental plan. If a person has entered into a WIK agreement and fails to perform that agreement or any period thereof by the due date and GAIC`s liability has been deferred or is subject to a instalment payment agreement, any GAIC liability becomes immediately due. Home > focus > assessment of in-kind contributions – a reminder A planning agreement (also known as a voluntary planning agreement) is an offer by a developer to the board to dedicate land, make monetary contributions, or provide any other material public benefit to be used or used for public purposes. A WIK agreement may contain a provision that restricts a person who has entered into the agreement from any relationship with the following persons, unless there is the consent of the Minister of Planning. LTL in Focus is primarily aimed at public and development sector professionals working in the fields of planning, environment and government.

So you can review your organization`s social media policies before posting comments. It goes without saying that we expect all comments to maintain a certain level of respect and professional courtesy. Our „General Guide to Work in The Course of Natural Procedure“ provides general information on how we handle WIK applications until the end of the project. The guide can be downloaded below: Explanation – Schedule 4 of the Planning Agreement In order to legally impose a condition under section 7.11, we must be satisfied that the proposed development will create or is likely to create a demand for new public facilities. There is a compelling requirement that contributions under a condition under section 7.11 are reasonable. WIK proposals should be addressed to the Director General. If you have any questions, please contact our Asset Management Engineer (Section 7.11) Siva Karthigesh or our Developer Contributions Manager Dennis Bagnall on 02 9839 6000. As the surveyor did not properly perform his duties as required by WIKA, the decision was not binding on the proponent and the Commission`s request for additional payment from the proponent failed.

Our adopted WIK policy and wik agreement template can be downloaded below: The Victorian Planning Authority must then determine the following: The Victorian Planning Authority must inform the State Revenue Commissioner of its decision. A quantity surveyor has been mandated. However, the proponent argued that the surveyor`s alleged determination of the estimated cost of road construction was not made in accordance with WIKA and was therefore not binding. Nevertheless, the Court concluded that the surveyor`s finding did not meet WIKA`s requirements, as it did not take into account the costs associated with the removal of the roadways, the excavation and the clearing of the overburden, all of which were necessary for the construction of the access road. At the heart of the dispute was the question of whether the quantity surveyor had made an error in excluding the work related to the construction of the container. The proponent submitted that these costs should be included in the calculation of the costs of constructing the access road. The Council argued that this should not be the case. Section 7.11 of the Environmental Planning and Assessment Act, 1979 empowers boards, when determining an application for development, to grant approval subject to a condition under section 7.11 for the provision, expansion or expansion of public facilities and utilities, provided that the condition is approved by an assessment plan. Responsibility as a user of public land and effective warning signs As part of WIKA, the developer agreed to build the new access road, which was to be built over a concrete rainwater tank to be built as part of the development. WIKA provided that the value of the access road contribution was to be determined by „a quantity surveyor mandated by the Council in accordance with paragraphs 4.3 to 4.7“.

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