Essential Guide to Voluntary Planning Agreements
The latest edition of our Essential Guide to Local Government Law will assist local councils to understand the benefits and the requirements which apply to the making of a voluntary planning agreement under the Environmental Planning and Assessment Act 1979 (EPA Act).
What is a Voluntary Planning Agreement?
A voluntary planning agreement (VPA) is a written agreement between a planning authority (such as a local council) and a developer who has sought a change to an environmental planning instrument (EPI) or who has made or proposes to make a development application (or who is associated with someone who has) in which the developer agrees to make contributions to the authority for use for a public purpose.
Although it is described as an agreement, a VPA usually takes the form of a deed, because the developer is making contributions but is not usually receiving any consideration in return.
A high degree of transparency is required throughout the VPA process to preserve the integrity of the development assessment process. The developer wants the consent authority to consider its offer to enter into a VPA when the Council evaluates a proposal to amend an EPI or considers the merits of a development application. It is therefore important that the public can see what additional benefits the developer is offering to provide, to reduce the risk of bias or of irrelevant matters being taken into account. Planning authorities should not place disproportionate weight on a VPA when considering the planning merits of a development application or a proposal to amend an EPI.
Councils should be careful to ensure that, where the circumstances described above exist, they follow the prescribed process for the making of VPAs and do not enter into agreements which have a similar effect outside that regime. Considering such agreements in the development assessment process may result in a development consent being found to be invalid.
What are the benefits of a Voluntary Planning Agreement?
A developer will often offer to make contributions as part of the process of seeking a change to an EPI or preparing a development application as a way to offset potential impacts of development on the broader community.
A broad range of contributions can be obtained by a planning authority under a VPA. Common forms of contributions which are provided under VPAs include (but are not limited to):
- the dedication of land free of cost, which can include land outside the scope of the land to which the relevant application relates.
- the payment of one or more monetary contributions. These can be in addition to development contributions and can exceed the development contribution cap amount. Provision can also be made in a VPA for monetary contributions to be reviewed and adjusted according to cost revisions rather than indexation.
- the carrying out of works, such as the construction or upgrade of roads, stormwater infrastructure, playgrounds and community facilities, environmental works etc.
VPAs therefore provide a mechanism under which a willing developer can make contributions of a type or value which the planning authority could not require the developer to provide by other means. There does not need to be a strong connection between the proposed development and a monetary contribution or the works to be undertaken under a VPA, although the existence of some nexus between the two makes it less likely that the VPA might be seen as an attempt by the developer to ‘buy’ a development consent.
What information must be included in a Voluntary Planning Agreement?
The EPA Act requires that the following information be included in a VPA:
- a description of the land to which the agreement applies,
- a description of:
- the change to the environmental planning instrument to which the agreement applies, or
- the development to which the agreement applies,
- the nature and extent of the provision to be made by the developer, the time or times by which the provision is to be made and the manner in which the provision is to be made,
- in the case of development, whether the agreement excludes (wholly or in part) or does not exclude the application of section 7.11, 7.12 or 7.24 to the development,
- if the agreement does not exclude the application of section 7.11 to the development, whether benefits under the agreement are or are not to be taken into consideration in determining a development contribution under section 7.11,
- a mechanism for the resolution of disputes under the agreement,
- the enforcement of the agreement by a suitable means, such as the provision of a bond or guarantee, in the event of a breach of the agreement by the developer.
A planning agreement cannot exclude the application of section 7.11 or 7.12 of the EPA Act unless the consent authority for the development or the Minister is a party to the agreement. A VPA cannot exclude the application of section 7.24 of the EPA Act without the approval of the Minister.
What is the process for entry into a Voluntary Planning Agreement?
The process for entry into a VPA is constrained by the processes set out in the EPA Act and the Environmental Planning and Assessment Regulation 2000 (EPA Regulation) and is generally as follows:
- a developer makes a written offer to provide contributions to a public authority in connection with a proposal to amend an EPI or a development application. The planning authority to whom the offer is directed does not have to be the same entity as the consent authority for the proposed development,
- one party will prepare a draft VPA and ‘explanatory note’, which summarises the key aspects of the VPA. The terms of the draft VPA are then negotiated by the parties,
- the draft VPA and explanatory note are placed on public exhibition for not less than 28 days. Where possible, exhibition should occur contemporaneously with the giving of notice of the relevant EPI or development application to which it relates,
- it is implicit that any submissions which are made in the exhibition period are considered by the planning authority before it decides whether or not to enter into the VPA. Where material changes need to be made to a VPA after the exhibition period has ended it will be necessary to re-exhibit the amended draft VPA before the parties enter into it,
- the VPA must then be signed by the parties (although it may not commence until some further event has taken place, such as the grant of development consent),
- the VPA will (often) be registered on the title of the land to which it relates, and
- any amendments made by the parties wish to the VPA will need to be placed on public exhibition and any submissions considered prior to any such changes taking effect.
How are Voluntary Planning Agreements enforced?
A VPA must include a suitable mechanism for its enforcement. The “suitability” of a proposed enforcement mechanism should be assessed by reference to whether the means of enforcement is likely to eliminate or reduce, to a commercially acceptable level, the risk that the obligation created by the VPA will not be performed and that the planning authority or the community will not receive the intended benefits.
Common enforcement mechanisms include bonds and guarantees. A bond provides financial security by giving the planning authority access to money which it can use to fulfil a payment obligation or to complete works if a developer is unable or unwilling to do so. A deed of guarantee operates by requiring another entity to guarantee that it will fulfil the developer ’s obligations under the VPA if it is unable or unwilling to do so. Alternative types of security could include registering a caveat on the title to the land or a combination of security options such as providing a bond and registering a caveat or providing a bond and deed of guarantee from a related or parent company. An assessment as to what enforcement mechanism is ‘suitable’ should be made on a case by case basis.
In addition to calling on the enforcement provisions included in the VPA, a planning authority can enforce compliance with a VPA by:
- requiring contributions to be made as a condition precedent to the issue of a subdivision certificate under s.6.15(1)(d) of the EPA Act, or
- following the dispute resolution mechanisms in the VPA, or
- seeking an order for compliance under s.9.45 of the EPA Act by commencing civil enforcement proceedings in the Land and Environment Court of NSW.
Public Voluntary Planning Agreement resources
There are a range of public resources on VPAs which Council’s may find useful, including:
This guide provides general advice only. Please contact Alice Menyhart, Director in our Planning, Environment and Local Government Team for specific VPA advice or for assistance in drafting, reviewing, amending or enforcing a VPA.
The law in this Guide is current as at 13 January 2021.
 EPA Act, s.4.15(1)(a)(iii).
 See additional guidance on the fundamental principles which apply to the consideration of planning agreements in the Department of Infrastructure Planning and Natural Resources Development Contributions Practice Note, issued 19 July 2005. DPIE published an exhibition draft Planning agreements practice note in April 2020, although it has not yet been made.
 Gwandalan Summerland Point Action Group Inc v Minister for Planning  NSWLEC 140.
 See Tesco Stores v Secretary of State for the Environment & Ors.  1 WLR 759.
 EPA Act, s.7.4(3).
 Or a development corporation designated by the Minister to give approvals under subsection 7.3(5A).
 A template VPA can be found in Attachment A to the Department of Infrastructure Planning and Natural Resources Development Contributions Practice Note, issued 19 July 2005.
 Cl. 25E of the EPA Regulation sets out what must be included in the explanatory note.
 Cl 25D EPA Regulation
 A VPA must be signed by the parties to the agreement: cl.25B(1)(b) EPA Regulation
 Huntlee Pty Ltd v Sweetwater Action Group Inc (2011) 185 LGERA 429, 459 .