RFI - Attachment 4- Advice regarding offsets from HopgoodGanim

 

 

Stockwell Development Group Pty Ltd
C/- Leanne Porter
Development Manager

24 April 2019

 

entered into). It is our view that the Council must consider this condition when assessing the
Development Application, as required by section 14(2) of the Environmental Offsets Act.

8. Finally, the Infrastructure Agreement remains in effect under the Planning Act 2016
(Planning Act) according to the terms and conditions of the document, even if the terms and
conditions could not be imposed under the Planning Act. The Planning Act applies to the
document as if the document had been made under the Planning Act.

9. In all of the circumstances, it is our opinion that the Council is precluded from imposing an
environmental offset condition on an approval of the Development Application. In summary:

(a) condition 12 of the Stage 1 Approval and the Infrastructure Agreement provided for
dedication to the Council of Open Space Areas A and B (comprising 12.63ha) of land
as part of Stage 1, which has been done;

(b) in the Infrastructure Agreement, the Council recognised that dedication to the Council
of Open Space Areas A and B was an appropriate commitment “to meet
environmental needs” of the Shire Business Centre land (including the subject Land);

(c) the Infrastructure Agreement provided for ongoing management of private open
space areas “to meet the environmental requirements”;

(d) given the above, the Infrastructure Agreement provided immunity from conditions in
development approvals for future stages (namely any subsequent development of
the Shire Business Centre) requiring any further dedication of land for, inter alia,
nature conservation, bushland preservation and like purposes;

(e) having regard to the above, the Council could not be satisfied that the proposed
development the subject of the Development Application will, or is likely to, have the
requisite significant residual impact;

(f) further, the Council must, in determining whether to impose an environmental offset
condition, consider condition 12 of the Stage 1 Approval and clause 4.1 of the
Infrastructure Agreement which resulted in the dedication of land for substantially the
same matter and impact, being the ultimate development of the Shire Business
Centre. Having considered the condition (and Infrastructure Agreement), the Council
could not reasonably form a view that an environmental offset condition is required
for the Development Application.

Yours faithfully

[Fy

HopgoodGanim Lawyers

 

Contact: Sarah Macoun
Partner
T 07 3024 0367
F 07 3024 0067
E [email protected]

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