Acceptability test. The Practice Note sets out the following test for determining whether a planning agreement is acceptable and appropriate. Ku-ring-gai Council will apply the test to all planning agreements: • is the proposed planning agreement directed towards a proper or legitimate planning purpose ordinarily ascertainable from the statutory planning controls and other adopted planning policy applying to the development and the circumstances of the case? • does the proposed planning agreement provide for public benefits that bear a relationship with the development? • will the proposed planning agreement produce outcomes that meet the general values and expectation of the public and protect the overall public interest? • does the planning agreement provide for a reasonable means of achieving the relevant purposes and outcomes and securing the benefits? • does the planning agreement protect the community against planning harm?
Acceptability test. Practice Notes issued by the State government sets out an Acceptability Test for assessing whether planning obligations are appropriate under a planning agreement. The Acceptability Test ensures planning agreements: Are directed towards proper or legitimate planning purposes, ordinarily ascertainable from the statutory planning controls and other adopted planning policies applying to development; Provide for public benefits that bear a relationship to development that is not de minimis (that is benefits that are not wholly unrelated to development); Produce outcomes that meet the general values and expectations of the public and protect the overall public interest; Provide for a reasonable means of achieving the relevant purposes and outcomes and securing the benefits; and Protect the community against planning harm.
Acceptability test. 9.1 The Practice Note sets out guidelines and safeguards in the application of planning agreements. These include determining the planning agreements acceptability and reasonableness. Council will apply the following test in order to assess the desirability of a Planning Agreement. The Planning Agreement must:
a) Be directed towards legitimate planning purposes, that can be identified in the statutory planning controls and other adopted planning strategies and policies applying to development.
b) Provide for the delivery of infrastructure or public benefits not wholly unrelated to the development.
c) Produce outcomes that meet the general values and expectations of the public and protect the overall public interest.
d) Provide for a reasonable means of achieving the desired outcomes and securing the benefits.
e) Protect the community against adverse planning decisions.
Acceptability test. Council will apply the following principles to assess the acceptability of the proposed Planning Agreement, including whether the agreement:
(a) Is directed towards legitimate planning purposes, which can be identified in the statutory planning controls and other adopted planning strategies and policies applying to development.
(b) Provides for the delivery of infrastructure or public benefits not wholly unrelated to the development.
(c) Produces outcomes that meet the general values and expectations of the public and protect the overall public interest and environment from adverse impact.
(d) Provides for a reasonable means of achieving the relevant purposes and desired outcomes and securing the benefits.
(e) Protects the community against adverse planning decisions.
(f) Whether there are any relevant circumstances that may operate to preclude Council from entering into the proposed Planning Agreement; and
(g) Proposes the quantum of the Public Benefit commensurate with (or greater than) the value of the Development Contribution. Specific matters in relation to the acceptability of types of Public Benefits (including land dedication and Material Public Benefits) are detailed below. In deciding whether land to be dedicated towards a public purpose as part of a Planning Agreement is acceptable, Council will consider the following matters:
(a) Monetary value of the land,
(b) Dimensions, location and topography of the land,
(c) Current use and any improvements on the land,
(d) Factors affecting the usability of the land, including soil condition; land contamination, flood affectations, road and pedestrian accessibility, solar access and any relationship with existing Public Facilities,
(e) Ongoing costs to Council in managing the land, and
(f) Works proposed to be undertaken by the developer (if any) prior to the dedication of the land.
Acceptability test. Council will only agree to accept an offer to enter into a planning agreement after considering whether the planning agreement meets the acceptability test referred to below. The acceptability criteria below are reflective of the Practice Note. For a planning agreement to be acceptable to Council it must:
1) Be submitted in writing with a formal letter of offer to enter into a planning agreement which is signed by all landowners and/or proposed parties to the agreement and identifies the development application or planning instrument change to which the offer relates.
2) Be directed towards legitimate planning purposes, which can be identified in the statutory planning controls and other adopted planning strategies and policies applying to development.
3) Provide for public benefits that bear a relationship to the development, that are not wholly unrelated to the development and are located in the locality in which the development is situated.
4) Produce outcomes that meet the general values and expectations of the public and protect the overall public interest.
5) Provide for a reasonable means of achieving the desired outcomes and securing the benefits.
6) Protect the public against unreasonable, adverse environmental or amenity impacts.
7) Provide clear details of the nature and extent of the development contributions offered by the developer under the agreement and clearly specify when and how the contributions will be made in the formal offer.
8) Be suitable in the context of Council’s broader strategic infrastructure planning framework, including all draft or in force Section 7.11 or Section 7.12 Contributions Plans, precinct planning works, other planning agreements and this Policy.
9) Not result in a shortfall or deficit under the contributions plan applicable to the development by way of granting exemption from the applicable Section 7.11 or Section 7.12 contributions.
Acceptability test. Council’s officers will use the following test to determine whether the officer will recommend to Council that it enter into a planning agreement for proposed developments with on-site car parking deficiencies. Where Council officers determine that any of the following questions cannot be answered ‘yes’, and where an alternate proposal that meets Council’s requirements has not been negotiated, Council will not enter into the agreement. Is the planning agreement directed towards proper or legitimate planning purposes, having regard to the planning controls and policies applying to development in the Lake Macquarie Local Government Area? Will the proposed planning agreement likely produce outcomes that meet the values and expectations of the wider Lake Macquarie community, and protect the overall public interest? Does the proposed planning agreement conform to the intent, principles, and requirements of this Policy?
Acceptability test. In considering, negotiating and entering a VPA , the Council will consider whether the terms of the VPA satisfy the ‘acceptability test’ as provided by the planning note. In particular, Council will consider the following matters to determine if a proposed VPA is acceptable:
a) is the proposed VPA directed towards proper or legitimate planning purposes, ordinarily ascertainable from the statutory planning controls and other adopted planning policies applying to development?
b) does the proposed VPA provide for public benefits that are not wholly unrelated to the development?
c) does the proposed VPA produce outcomes that meet the general values and expectations of the public and protect the overall public interest?
d) does the proposed VPA provide for a reasonable means of achieving the relevant purposes and outcomes and securing the benefits?
e) does the VPA conform to the general principles governing Council’s use of VPAs?
f) are there any relevant circumstances that may operate to preclude Council from entering into the proposed VPA?
g) does the proposed VPA protect the community against planning harm?
Acceptability test. Planning agreements should be assessed against the acceptability test below which is a generally applicable test for determining the acceptability of a planning agreement. The acceptability test requires that planning agreements:
1) Are directed towards legitimate planning purposes, which can be identified in the statutory planning controls and other adopted planning strategies and policies applying to development.
Acceptability test. The Council will consider the following questions to assess the acceptability of a proposed Planning Agreement:
(a) Is the proposed Planning Agreement directed towards a proper and legitimate planning purpose having regard to the statutory planning controls and other adopted planning policies and infrastructure strategies and the circumstances of the development?
(b) Does the proposed Planning Agreement provide for a reasonable means of achieving the relevant planning purpose and securing the relevant Public Benefit?
(c) Will the proposed Planning Agreement produce outcomes that benefit or protect the public interest against poor planning outcomes?
(d) Does the proposed Planning Agreement promote the Council’s aim in relation to the use of agreements as set out in this Policy?
(e) Are there any relevant circumstances that may preclude the Council from entering into the proposed Planning Agreement?
(f) Will the proposed Planning Agreement provide benefits that bear a relationship to the development or the wider community?
(g) Is the Public Benefit proposed appropriate, having regard to the nature of the development? The above questions are not a code or an exclusive list. The Council may consider such other questions or considerations that are relevant to its deliberations concerning the acceptability of a proposed Planning Agreement.
Acceptability test. This Policy requires that all planning agreements meet the acceptability test. The acceptability test requires that planning agreements:
1) are directed towards proper or legitimate planning purposes, ordinarily ascertainable from the statutory planning controls and other adopted planning policies applying to development; and
2) ordinarily provide for public benefits that bear a relationship to development that is not de minimus or in other words, not wholly unrelated to the development; and
3) produce outcomes that meet the general values and expectations of the public and protect the overall public interest; and
4) provide for a reasonable means of achieving the relevant purposes and outcomes and securing the benefits; and
5) protect the community against planning harm. Although planning benefits offered by a planning agreement should ordinarily bear some relationship to the development, there is no necessity for the more rigorous nexus requirements applicable to section 94 contributions. The formal public participation process involved with planning agreements ensures community involvement in decisions that are made in regard to planning agreements in order to legitimate the process of the redistribution of the costs and benefits of development through planning agreements.
