04 July 2023
17 min read
#Government, #Property, Planning & Development, #Construction, Infrastructure & Projects
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With changes already in place since its inception, the Minns Labor Government has begun the process of fulfilling its election promise to review and act on the proposed reforms to State infrastructure contributions set out by its predecessors.
On 28 June 2023, the NSW Parliament passed the Environmental Planning and Assessment Amendment (Housing and Productivity Contributions) Bill 2023 (the Bill). The changes introduced by the Bill are intended to set out the new State government’s approach to meeting the housing needs of its fast-growing population. At the time of writing, the Bill is awaiting assent.
A review of current trends and forecasts revealed an expected shortfall of the number of new dwellings required to meet NSW population growth over the next five years by some 134,000 dwellings.
Yet, these current forecasts are expected to quickly become outdated. With the pandemic-induced population stagnation dissipating, the NSW population growth is already above the previous 10-year average. Existing projections have the potential to leave roughly 83,000 people without a dwelling over the next five years.
The new legislation seeks to facilitate the provision of regional infrastructure that supports and promotes housing and economic activity by imposing a contribution. This establishes the "housing and productivity contributions scheme".
The ‘provision’ of regional infrastructure is defined broadly to include recouping costs of regional infrastructure, and the recurrent spending on such infrastructure – including paying councils to provide the infrastructure – as well as research, reports, and the general administration of the new provisions by the State government.
The critical mechanism underpinning the scheme is the ability of the Minister to issue orders – with the Treasurer’s concurrence – requiring a “housing and productivity contribution” (HAP Contribution) towards the provision of regional infrastructure. Similar to the current Special Infrastructure Contributions (SIC) system, such an order will set out the development to which the order applies, how the contribution is determined and other important matters.
A further critical element of the scheme is that contributions collected can only be used within the region for which they are collected, subject to one exception. That exception is where the contribution relates to “measures to conserve or enhance the natural environment”.
However, no connection is required between the development on which a HAP Contribution is imposed and the regional infrastructure provided from the contribution, except where the contribution includes a “transport project component” for the specific area, or a “strategic biodiversity component” for measures to conserve or enhance the natural environment required for biodiversity certification of the land.
Monies collected from the HAP Contribution (except for those relating to strategic biodiversity contributions) will be accounted for in the “HAP Fund”, and can be drawn on for the provision of regional infrastructure that is:
Monies collected from strategic biodiversity components of the HAP Contribution will be paid into a “Strategic Biodiversity Fund” and can be drawn on to fund the “measures to conserve or enhance the natural environment” summarised above.
Upon commencement, the SIC provisions that would be repealed continue to apply previous SIC determinations, directions and conditions of development consent, until repealed by a new HAP Ministerial order or under the previous SIC provisions.
As is the case for SICs now, HAP Contributions can be wholly or partially excluded under a planning agreement with the approval of the Minister or a development corporation designated by the Minister to grantsuch approval.
The contribution rates will be indexed quarterly using the ABS PPI index, but are set to begin as follows:
The rates are intended to be phased in from 1 October 2023 at a 50 per cent discount, reducing to a 25 per cent discount in July 2024, and eventually as a full contribution from July 2025 onwards.
The State government ultimately expects the proposed reforms to generate around $700 million a year for regional infrastructure development. While there is a clear optimism within the State government for the potential benefits of the HAP Contribution scheme, the classic tension which arises from requiring contributions to provide for and stimulate development from the developers themselves will remain.
While the HAP system introduces a new and potentially more targeted approach to collecting and using the collection and use of State level infrastructure contributions, it is an iteration of the SIC system with which the development industry is ultimately familiar. The achievement of the HAP system may depend on how it works in concert with other components of planning and housing policy, including at the federal level, to increase the supply and delivery of housing.
If you have any questions about this article or the HAP Contribution scheme, please get in touch with a member of our team below.
Author: Daniel Fane
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AAT Bulletin Issue No.11/2023
The AAT Bulletin is a fortnightly publication containing information about recently published decisions and appeals against decisions in the AAT’s General, Freedom of Information, National Disability Insurance Scheme, Security, Small Business Taxation, Taxation & Commercial and Veterans’ Appeals Divisions Cases (19 June 2023). Read more here.
Re-issued Practice Note SC CL 02 – Criminal Proceedings
On 26 June 2023 the Chief Justice reissued Practice Note SC CL 2 – Criminal Proceedings, with a commencement date of 27 June 2023. Read more here.
Re-issued Practice Note SC EQ 07 – Succession and Probate Lists
On 16 June 2023 the Chief Justice reissued Practice Note SC EQ 07 – Succession & Probate Lists, with a commencement date of 1 July 2023. Read more here.
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On 16 June 2023 the Chief Justice reissued Practice Note SC EQ 01 – Case Management in the Equity General List, with a commencement date of 1 July 2023. Read more here.
Stalvies v Snowy Monaro Regional Council [2023] NSWCATAD 166
ADMINISTRATIVE REVIEW – government information – personal information – whether disclosure could reasonably be expected to reveal personal information – whether disclosure could contravention of Privacy and Personal Information Protection Act 1998.
Civil and Administrative Tribunal Act 2013; Government Information (Public Access) Act 2009 (NSW); Local Government Act 1993 (NSW); Privacy and Personal Information Protection Act 1998.
Taphouse Investments Pty Ltd v Independent Liquor and Gaming Authority [2023] NSWCATAP 171
APPEALS – moot appeals – appeal in administrative review proceedings – administrative review of Tribunal decision affirming a decision of the Liquor & Gaming Authority to refuse an application for an extended trading hours authorisation – change of hotel licensee subsequent to the Tribunal’s decision – interpretation of s 49 (2) of the Liquor Act concerning applications for an extended trading hours authorisation – whether the authorisation power applies to the hotel licensee from time to time or can only be granted to the applicant/licensee – whether the grant of a liquor licence and extended trading hours authorisation runs with the hotel premises – whether any utility in determining the merits of the appeal – whether discretion should be exercised to determine the appeal even though it has no practical consequences for the parties.
Administrative Decisions Review Act 1997 (NSW); Civil and Administrative Tribunal Act 2013 (NSW); Gaming and Liquor Administration Act 2007 (NSW); Liquor Act 2007 (NSW).
Entrepreneur Enterprises Pty Ltd v Lane Cove Municipal Council [2023] NSWLEC 1323
APPEAL – development application – increase in numbers at a centre based child care facility – acoustic impact – Plan of Management – whether Plan of management is acceptable.
Education and Care Services National Regulations 2011; Environmental Planning and Assessment Act 1979; Lane Cove Local Environmental Plan 2009; State Environmental Planning Policy (Transport and Infrastructure) 2021.
Gogulan v Chief Commissioner of State Revenue [2023] NSWCATAD 162
TAXES AND DUTIES – land tax – principal place of residence exemption – onus of proof.
Administrative Decisions Review Act 1997 (NSW); Land Tax Management Act 1956 (NSW); Taxation Administration Act 1996 (NSW).
Wei v Chief Commissioner of State Revenue [2023] NSWCATAD 161
TAXES AND DUTIES – surcharge land tax – liability.
Foreign Acquisitions and Takeovers Act 1975 (Cth); Administrative Decisions Review Act 1997; Duties Act 1997; Land Tax Act 1956; Land Tax Management Act 1956; State Revenue Legislation Amendment (Budget Measures) Act 2016; State Revenue and Other Legislation Amendment (Budget Measures) Act 2017; State Revenue and Fines Legislation Amendment (Miscellaneous) Act 2022; Taxation Administration Act 1996.
Dugandzic v Randwick City Council [2023] NSWLEC 1319
DEVELOPMENT APPLICATION – mixed use development – exceedance of the height of buildings development standard – design excellence.
Environmental Planning and Assessment Act 1979; Land and Environment Court Act 1979; Randwick Local Environmental Plan 2012.
Togias v State of New South Wales [2023] NSWSC 665
LAND LAW – Co-ownership – second defendant has recently become the registered proprietor of certain residential real property occupied by the plaintiff and her former de facto partner – the second defendant has acquired title to the property consequent upon the making of orders under the Criminal Assets Recovery Act 1990 against the plaintiff’s former de facto partner – the Court of Appeal has declared that the plaintiff has a 25% interest in the property and the second defendant holds the other 75% – the second defendant now seeks to sell the property – whether the defendant has an immediate right to possession of the property against the plaintiff, a co-owner in equity – whether the plaintiff occupies the property as a tenant at will of the second defendant – whether judgment for possession should be entered in favour of the second defendant against the plaintiff – whether the issue of a writ for possession should be stayed.
Civil Procedure Act 2005; Conveyancing Act 1919; Criminal Assets Recovery Act 1990; Uniform Civil Procedure Rules 2005.
Salmon v Mosman Municipal Council [2023] NSWLEC 1310
MODIFICATION APPLICATION – modification application to original consent – dwelling house development in C4 Environmental Living zone – whether substantially the same – no public submissions made – reasons given for the grant of consent.
Environmental Planning and Assessment Act 1979; Environmental Planning and Assessment Regulation 2021; Mosman Local Environmental Plan 2012; State Environmental Planning Policy (Biodiversity Conservation) 2021; State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004.
Brown v Transport for New South Wales [2023] NSWLEC 1309
COMPULSORY ACQUISITION – objection to the amount of compensation offered by the Respondent – conciliation conference – agreement between the parties – orders.
Conveyancing Act 1919; Land Acquisition (Just Terms Compensation) Act 1991; Land and Environment Court Act 1979.
Johal v Transport for New South Wales [2023] NSWLEC 1308
COMPULSORY ACQUISITION – conciliation conference – compensation – agreement between the parties – orders.
Land Acquisition (Just Terms Compensation) Act 1991; Land and Environment Court Act 1979; Roads Act 1993.
Strata Plan 87988 v Newcastle City Council [2023] NSWLEC 1307
DEVELOPMENT CONTROL ORDER APPEAL – fire safety – modified order – conciliation conference – agreement between the parties – orders.
Environmental Planning and Assessment Act 1979; Land and Environment Court Act 1979.
Redbank United Pty Ltd v Blue Mountains City Council [2023] NSWLEC 1295
APPEAL – deemed refusal – application for construction of single dwelling and detached carport with driveway to road to be constructed by Applicant on road reserve – need to take into account aims of Plan (cl 1.2) of the Blue Mountains Local Environmental Plan 2015 – importance of Special Local Provisions of the Blue Mountains Local Environmental Plan – did the Contentions address ‘real’ issues – information requested by Respondent and required in order to make assessment not, or inadequately, provided – was the calculation of the area of vegetation to be impacted by the proposed development correct – was the area of vegetation to be cleared such as to trigger entry into the Biodiversity Offsets Scheme (BOS) – was a Biodiversity Assessment Report (BDAR) required – can deficiencies in data availability be satisfied by deferred commencement conditions and operational conditions.
Biodiversity Conservation Act 2016; Biodiversity Conservation Regulation 2017; Blue Mountains Local Environmental Plan 2015; Civil Procedures Act 2005; Environmental Planning and Assessment Act 1979; Environmental Protection and Biodiversity Conservation Act 1979 (Cth); Land and Environment Court Act 1979; Sydney Regional Environmental Plan No 20 – Hawkesbury – Nepean River (No 2-1997); Water Management Act 2000.
NSW Legislation
Regulations and other miscellaneous instruments
Access Licence Dealing Principles (Interstate Assignments) Order 2023 – published LW 23 June 2023.
Administrative Arrangements (Administrative Changes – Miscellaneous) Order (No 4) 2023 – published LW 23 June 2023.
Building Legislation Amendment Regulation 2023 – published LW 23 June 2023.
Environmental Planning and Assessment Amendment (Lismore City Local Planning Panel) Regulation 2023 – published LW 23 June 2023.
Government Sector Employment Amendment Regulation 2023 – published LW 23 June 2023.
Point to Point Transport (Fares) Order 2023 – published LW 23 June 2023.
Supreme Court (Amendment No 434) Rule 2023 – published LW 23 June 2023.
Transport Administration (General) Amendment (State Tax Exemption) Regulation 2023 – published LW 23 June 2023.
Uniform Civil Procedure (Amendment No 100) Rule 2023 – published LW 23 June 2023.
Water Management (General) Amendment (Access Licence Exemption) Regulation 2023 – published LW 23 June 2023.
Water Sharing Plan for the Bega River Area Regulated, Unregulated and Alluvial Water Sources 2023 – published LW 23 June 2023.
Water Sharing Plan for the Bellinger River Area Unregulated and Alluvial Water Sources Amendment Order 2023 – published LW 23 June 2023.
Water Sharing Plan for the Brunswick Unregulated and Alluvial Water Sources Amendment Order 2023 – published LW 23 June 2023.
Water Sharing Plan for the Clarence River Unregulated and Alluvial Water Sources Amendment Order 2023 – published LW 23 June 2023.
Water Sharing Plan for the Greater Metropolitan Region Groundwater Sources 2023 – published LW 23 June 2023.
Water Sharing Plan for the Greater Metropolitan Region Unregulated River Water Sources 2023 – published LW 23 June 2023.
Water Sharing Plan for the Hastings Unregulated and Alluvial Water Sources Amendment Order 2023 – published LW 23 June 2023.
Water Sharing Plan for the Macleay Unregulated and Alluvial Water Sources Amendment Order 2023 – published LW 23 June 2023.
Water Sharing Plan for the Nambucca Unregulated and Alluvial Water Sources Amendment Order 2023 – published LW 23 June 2023.
Water Sharing Plan for the North Coast Coastal Sands Groundwater Sources Amendment Order 2023 – published LW 23 June 2023.
Water Sharing Plan for the Richmond River Area Unregulated, Regulated and Alluvial Water Sources 2023 – published LW 23 June 2023.
Water Sharing Plan for the Tweed River Area Unregulated and Alluvial Water Sources 2023 – published LW 23 June 2023.
Environmental planning instruments
Canterbury-Bankstown Local Environmental Plan 2023 – published LW 23 June 2023.
Kempsey Local Environmental Plan 2013 (Amendment No 32) – published LW 23 June 2023.
Parramatta Local Environmental Plan 2023 (Amendment No 4) – published LW 23 June 2023.
Tamworth Regional Local Environmental Plan 2010 (Map Amendment No 1) – published LW 23 June 2023.
Commonwealth
Act compilation
Ozone Protection and Synthetic Greenhouse Gas (Import Levy) Act 1995 27/06/2023 – Act No. 126 of 1995 as amended.
Therapeutic Goods Act 1989 21/06/2023 – Act No. 21 of 1990 as amended.
National Consumer Credit Protection Act 2009 21/06/2023 – Act No. 134 of 2009 as amended.
Ozone Protection and Synthetic Greenhouse Gas (Manufacture Levy) Act 1995 19/06/2023 – Act No. 125 of 1995 as amended.
Customs Act 1901 15/06/2023 – Act No. 6 of 1901 as amended.
Bill
Migration Amendment (Overseas Organ Transplant Disclosure and Other Measures) Bill 2023 22 June 2023.
Treasury Laws Amendment (Making Multinationals Pay Their Fair Share – Integrity and Transparency) Bill 2023 22 June 2023.
Migration Amendment (Strengthening Employer Compliance) Bill 2023 22 June 2023.
Intellectual Property Laws Amendment (Regulator Performance) Bill 2023 22 June 2023.
Classification (Publications, Films and Computer Games) Amendment (Industry Self-Classification and Other Measures) Bill 2023 22 June 2023.
Crimes Legislation Amendment (Combatting Foreign Bribery) Bill 2023 22 June 2023.
Environment Protection (Sea Dumping) Amendment (Using New Technologies to Fight Climate Change) Bill 2023 22 June 2023.
Intelligence Services Legislation Amendment Bill 2023 22 June 2023.
International Organisations (Privileges and Immunities) Amendment Bill 2023 21 June 2023.
National Occupational Respiratory Disease Registry Bill 2023 21 June 2023.
National Occupational Respiratory Disease Registry (Consequential Amendments) Bill 2023 21 June 2023.
Biosecurity Amendment (Advanced Compliance Measures) Bill 2023 21 June 2023.
Freeze on Rent and Rate Increases Bill 2023 20 June 2023.
Australian Capital Territory (Self-Government) Amendment Bill 2023 20 June 2023.
Interactive Gambling Amendment (Ban on Gambling Advertisements) Bill 2023 19 June 2023.
Broadcasting Services Amendment (Healthy Kids Advertising) Bill 2023 19 June 2023.
Greenhouse and Energy Minimum Standards Amendment (Administrative Changes) Bill 2023 15 June 2023.
Home Affairs Bill 2023 15 June 2023.
Broadcasting Services Amendment (Ban on Gambling Advertisements During Live Sport) Bill 2023 14 June 2023.
Treasury Laws Amendment (2023 Law Improvement Package No. 1) Bill 2023 14 June 2023.
Treasury Laws Amendment (2023 Measures No. 3) Bill 2023 14 June 2023.
Public Service Amendment Bill 2023 14 June 2023.
Counter-Terrorism Legislation Amendment (Prohibited Hate Symbols and Other Measures) Bill 2023 14 June 2023.
Murdoch Media Inquiry Bill 2023 14 June 2023.
Disclaimer
The information in this publication is of a general nature and is not intended to address the circumstances of any particular individual or entity. Although we endeavour to provide accurate and timely information, we do not guarantee that the information in this newsletter is accurate at the date it is received or that it will continue to be accurate in the future.
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