Notifying planning agreements
Local infrastructure contributions practice notes
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Public notification of planning agreements helps to ensure negotiations and decisions are transparent and in the public interest. This module provides guidance for councils on the process for public notification.
Legislative requirements
Councils must publicly notify draft planning agreements before they can be finalised and entered into.
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A draft planning agreement must be publicly notified and available to inspect for a minimum of 28 days before it can be entered into. This requirement also applies when amending or revoking an executed planning agreement. |
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Where possible, the public notice should be given at the same time and in the same manner as the notice of the related planning proposal or development application. |
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An explanatory note must be prepared and accompany the draft planning agreement during the notification period. |
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Councils must provide a copy of all local planning agreements to the Minister within 14 days after the agreement is entered into or amended, or revoked. Note: Councils can comply with this requirement by publishing all executed planning agreements on the NSW Planning Portal as per their reporting requirements. |
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If other planning authorities are parties to a planning agreement that applies to the area of a local council, and the council is not party to that agreement, the other planning authority must provide a copy to the council within 14 days after the agreement is entered into or amended or notice if an agreement is revoked. |
Policy positions
Planning agreements require a clear and simple explanatory note
Planning agreements are legal documents that can be complex and difficult to understand. The explanatory note is used to explain in a simple way what the draft planning agreement is proposing, how it delivers public benefit, and why it is acceptable and in the public interest. The explanatory note should be easy to understand, written in simple language and explain what is in the draft agreement.
By reading an explanatory note, a community member or other stakeholder should be able to understand the draft agreement, the nature of the proposed development or planning proposal, the public benefits being provided by the agreement and any public impacts (both positive and negative).
A council should detail in its planning agreements policy its preference for who prepares the explanatory note, along with a template. Any of the parties to the agreement can prepare the explanatory note, but it should be reviewed and agreed upon by all parties before use.
The explanatory note should:
A. Identify how the draft agreement delivers public benefits and is in the public interest.
B. Summarise the objectives, nature and effect of the draft agreement and contain an assessment of its merits and any impact on the community.
C. Identify whether the draft agreement conforms with the council’s capital works program.
D. Indicate timing of delivery and include maps, diagrams, and other material to help explain what is proposed.
E. State whether the draft agreement specifies that certain requirements must be complied with before a construction certificate, occupation certificate or subdivision certificate is issued.
Any relevant supporting material should also be included
Any relevant supporting documentation should be made available during the notification period along with the explanatory note. This is important to help explain the terms of the draft agreement and its proposed public benefits.
Supporting documentation could include associated technical studies or reports. Such studies may help someone understand the public benefit being provided and make a fully informed decision on the overall proposal.
Significant changes made to a draft agreement following the notification period may need re-notification
A council must determine if any significant changes made to a draft planning agreement following notification could require re-notification. Councils should ensure that decisions on planning agreements are transparent and that the public can see the processes involved.
Re-notification is likely required if the changes materially affect:
- how any of the matters specified in section 7.4 of the EP&A Act are dealt with by the planning agreement
- key terms and conditions of the planning agreement
- council interests or public interests under the planning agreement
- whether a member of the community would have objected to the amended version if it had been publicly notified.
Best practice guidance
Councils should consider making the notification period a formal exhibition
While councils are only required to publicly notify draft planning agreements, it is best practice to treat this notification period as a formal exhibition and accept and consider public submissions. This will ensure greater transparency and probity and provides the community with an opportunity to give feedback on the draft agreement that council can consider when making a decision.
Planning agreements redistribute the costs and benefits of development, and the public should have a say on whether they think the balance between development and public benefit is being delivered.
Councils can choose to publicly exhibit planning agreements. For see guidance on exhibitions in the section 7.11 or 7.12 practice notes.