Works In Kind Agreement

A recent decision of the NSW Supreme Court highlights the difficulties that may arise in assessing in-kind benefits under agreements between a Council and a proponent pursuant to S94 (5) (b) of the Environmental Planning and Assessment Act 1979 (LOI OEB). Section 94 (5) (b) of the EPO Act provides that a compliant notice authority may accept the granting of a substantial public benefit (usually works) in part or the full satisfaction of a condition requiring development contributions imposed by the s94 (1) or (3). Anyone who has entered into a WIK agreement to carry out a GAIC liability must inform the Victorian Planning Authority in writing: if a person has entered into a WIK agreement and does not meet that agreement until the due date and the gaic liability has been deferred or a phased payment agreement is subject to the full liability of GAIC. Although “trade” does not cover persons authorized by the WIK agreement, it does include the conclusion of a sale, transaction or agreement or the obtaining or granting of country leases, licenses or authorizations or permanent improvements. A condition set out in Section 7.11 can be met by an agreement between the applicant and the “in-kind” Council. A WIK regime cannot provide for the dedication of the land to the satisfaction of Section 7.11 state. As noted in this case, when developing a substantive contract, it should be noted that the evaluation process and the proper scope of the work are clearly defined. Otherwise, it could have an impact on a Council`s ability to recover from potential development contribution deficits. Parties to a WIK agreement include the head of detention, the Minister of Planning, and may also include other parties, such as other government ministers and landowners. Rockdale City Council v Calibre Construction Corp Pty Ltd [2015] NSWSC 1980 was a dispute over the estimated contribution value of an access road built by a developer under an Art Operating Agreement (WIKA).

The value of the work was to partially fulfill a condition of the development authorization, which required the payment of development contributions under the EPO Act s94.