In a newly released circular, the NSW
Government Department of Planning has proposed amendments to
limit the types of community infrastructure for which
councils can levy
The State Government had previously announced its intention
to overhaul infrastructure charges for new land release areas,
but circular No. PS 07-018 (Circular) refers
to proposed changes that will affect section 94 and 94A
infrastructure contributions for all development.
The Circular states that councils will only be able to
impose levies under section 94 and 94A for:
Local infrastructure costs.
Local bus infrastructure.
Local parks that service a development site or
Drainage and water management expenses.
Land and facilities for local community infrastructure
that services a development site or precinct.
Land for other community infrastructure and recreation
The Circular states that 'all other costs, such as
facilities benefiting existing communities (including council
or district-wide community and recreation facilities) will no
longer be permitted to be recovered through [section 94 or 94A]
The Circular also states that section 94 and 94A
contributions will no longer be permitted to fund land
acquisition for riparian corridors.
It would appear that the State Government will attempt to
make these changes by requiring all contributions plans to be
formally approved, possibly by the Minister or the
Director-General and by requiring contributions plans to be
made in accordance with new Ministerial Guidelines. It is
possible that these changes could be made without amending the
Environmental Planning and Assessment Act 1979.
Although the Circular does not go into detail, it appears
that, if the changes are made, councils will no longer be able
to use sections 94 or 94A to levy for:
Local community facilities such as libraries and child
care centres, other than in relation to the land on which
they are constructed.
Improvements to existing parks.
Facilities that service more than just one development
site or development precinct - that is, facilities that meet
demand generated by multiple small developments across a
These changes may have significant impacts on those local
councils that are experiencing a great deal of infill
development, as they may not be able to levy for many of the
facilities and services required to meet the demand generated
by such development, particularly if those facilities have
'district' or 'regional'
Other changes are also proposed in relation to the way in
which section 94 or 94A infrastructure contributions are
collected and held.
The Circular proposes that any local environmental plan,
planning agreement or section 94 or 94A contributions plan made
before 12 November 2007 will continue to operate as if the
proposed changes were not made. Once the mechanisms to
implement the measures set out in the Circular have been
finalised, additional transitional measures will also be put in
The full impact of these proposed changes will not be known
until we see the detail as to how they will be implemented and
what exactly will be affected. We will report further on
any progress on the proposed changes.
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