Planning authorities, and in particular councils, should issue guidelines and procedures for the implementation of voluntary planning agreements, and the establishment of a VPA (or possible revocation or modification) may be recorded in the field. Section 93 (H) of the EP-A Act stipulates that a planning contract thus registered under the Act is mandatory for each owner from time to time in the land, as if he had entered into the planning contract himself. In order to establish a link, planning authorities and proponents should conduct transparent discussions upstream. It also requires a robust assessment of the needs of the local community, in consultation with service providers, stakeholders and the community. Voluntary planning agreements (VPAs) are generally seen as useful instruments that allow flexibility in the provision of public services and the provision of contributions to a number of public objectives that can go beyond traditional local contribution plans. This flexibility can benefit both developers and the broader community, and the draft practice advisory program recognizes these factors as the reasons for the spread of VPAs. As people become mobile, requirements increase and preferences change, evidence-based planning requires an analysis of community needs at the city and district level. Long-term needs should be taken into account, taking into account current and future requirements, stakeholder and community benefits, and models of good practice in terms of efficiency, flexibility and sustainability. In addition, a “planning authority” is designated either by a board, by the minister, by a ministerial corporation, or by an authority designated as a public authority under the regulations. Although the governance project applies only to boards, the draft practice notice contains guidelines for “planning authorities” in general, including the Minister of Planning and other agencies such as Transport for NSW. We therefore expect that the draft practice notice, if adopted, will be followed in the future by the Department of Planning, Industry and the Environment when negotiating the VPA on behalf of the Minister.

Councils should ensure that all contribution mechanisms are taken into account when planning. VPAs must remain a voluntary agreement between a developer and a planning authority regarding the public benefits resulting from the reallocation of large sites. The Department of Planning and Environment (DPE) recently published a draft practical opinion on the appropriate use of VPA. The emphasis is on the call for transparency. In particular, none of the major changes to the draft practice notice will address concerns about the misuse of VPAs. The draft practice notice provides examples of “potential adverse outcomes,” including planning authorities who request inappropriate benefits or mistakenly rely on their legal position for inappropriate benefits, but does not provide new guidelines on how to avoid these outcomes. Many councils use VPAs as a tool to extract additional contributions from developers that would not normally have been paid as part of a contribution plan. This is often the case when it comes to increasing density controls, but there is no coordinated strategic planning and assessment of infrastructure needs.

The updated draft planning agreement provides that some boards are expected to receive an equal share of the planning benefit resulting from changes to planning controls. To what extent is it reasonable if there are clearly strategic advantages in terms of increasing housing supply and employment in urban centres and growth areas? There must be surveillance of the VPA.