On the 28th April 2011, the select group of 4 councillors passed a resolution that a Section 173 Agreement be entered into with the MRC. It is our contention that:

  • This Agreement must be redrafted and renegotiated PRIOR to any approval of the Development Plan
  • The existing Agreement represents a financial windfall for the MRC and a burden on Glen Eira ratepayers.

Here is what the Agreement states:

  1. Certain infrastructure requirements are listed as ‘Required Infrastructure Projects’ and pertain almost exclusively to land within the boundaries of the Incorporated Plan – apart from traffic management at the corner of Koornang and Station Street and as listed in the works contained in Schedule 2.
  2. ‘Additional Infrastructure Projects’ is defined as being tied in with Part 3B of the Planning and Environment Act. Since this part of the legislation refers to Development Contributions, and Council has removed this section from its Planning Scheme, there is no way for council to exact payment from the MRC for anything ‘additional’ without the MRC’s agreement.

What the Agreement ensures is that approval for its Development Plan (even with conditions) comes first! Then there is the necessary argey bargey for ‘additional infrastructure’ works. In other words, Council is signing a blank cheque! Having approved the Development Plan, they would then need to go cap in hand and ask the MRC for ‘additional infrastructure works’. Nothing would compel the MRC to agree with any such request once they have got their Development Plan approved.

Here’s some extracts:

The development of the land within the parameters of the Incorporated Plan will generate a need for certain infrastructure to be provided. Some of that infrastructure is identifiable as at the date of this Agreement while the need for other infrastructure may only become apparent upon the approval of development plans under the Schedule to the Priority Development Zone.

Required Infrastructure Projects means infrastructure works not included in Schedule 2 that are fairly and reasonably required as a result of the development of the Subject Land under the Planning Scheme and which are included as a conditlon in the approval of a development plan or a planning permit pursuant to Schedule 2 of the Priority Development Zone.

We then get to Additional Infrastructure Projects with the wonderful ‘escape clause’ for the MRC –

the Additional Infrastructure Projects may benefit other land owners in the vicinity of the Subject Land and that it may be fair, just and equitable for contributions for the provision of this infrastructure to be provided by other persons in addition to the Owner.

if, at any time, Council introduces a development contributions plan, pursuant to Part 38 of the Act or otherwise, then any payment made by way of contribution for an Additional Infrastructure Project may be credited towards any payments required for works, services or facilities pursuant to the development contributions plan.

The Parties acknowledge and agree that:

7.1.1 the plans and specifications required for the Required Infrastructure Projects are intended to facilitate works to a standard required only by the development of the Subject Land within the parameters of the Incorporated Plan and not to a standard required to compensate for any inadequacy in the infrastructure that currently services existing developments or as a result of development on any other land.

7.1.3 the amount of contribution required for the Additional Infrastructure Projects will be determined as far as practicable having regard to the principles developed through relevant Victorian law which would apply to the assessment of a contribution pursuant to an approved development contributions plan under the Act.

COMMENTS

Approving any Development Plan without first analysing the overall potential impact on surrounding areas and demanding adequate compensation is sheer folly. It is simply not good enough that the Transport Plan only looks at a handful of adjoining streets and totally ignores the flow on effects of 2046 units and 13,500 square metres of retail/commercial space.

It is also not good enough that in catering for a possible 2046 units that the MRC be responsible for drainage and other service infrastructure ONLY within the bounds of the Precincts and expect residents to pay for the additional necessary upgrading of infrastructure that exists outside of the land’s borders.

Here we have a Section 173 that is not only reliant on the MRC agreeing to pay for anything that someone might struggle to define as ‘reasonable’ but is largely reliant on a Development Contributions Levy which does not exist and even if it did exist would not go anywhere in meeting the costs of the additional infrastructure that is undoubtedly required.

For this situation we can thank our brilliant ‘negotiating’ team of Newton, Pilling, Hyams, Esakoff and Lipshutz. Having stuffed up once before, it is imperative that this not happen again. Development Plan approval must come after a fully detailed and updated Agreement that itemises all necessary works throughout the entire 3 precincts and all the surrounding areas. Ratepayers should not be subsidising the profit making enterprises of any developer.

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