Attachment 1 - Letter from Thomson Geer - Condition 63 · 132007.12.8

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                   requirements that may reasonably be necessary for the works. An infrastructure
                   agreement adds nothing to the process in this context;

          (c)      A condition of approval provides greater clarity and certainty moving forward, as future
                   owners of the development can be expected to be well aware of the conditions
                   associated with an approval, but are less likely to be aware of a related infrastructure
                   agreement.

4.5       Finally, this condition was imposed during the currency of the Integrated Planning Act 1997. At
          the time it was imposed it was lawful to impose a condition that mandated an applicant/developer
          to enter into an infrastructure agreement. However, such conditions are no longer lawful. They
          are expressly prohibited by section 66(1)(b) Planning Act 2016 and have been unlawful pursuant
          to previous legislation for some time.3 The change application currently before the Council
          therefore represents an opportunity for the parties to modernise this condition and remove what
          has become an unlawful requirement.

5         Conclusion

5.1       We consider that the infrastructure agreement required pursuant to Condition 63 of the
          development approval is unnecessary. Moreover, if the development approval were granted
          today, imposition of a condition of this kind would be unlawful.

5.2       We consider that the appropriate way to resolve the matter is for the Council, as part of the
          current change application, to impose a revised condition 63 that requires the applicant/developer
          to implement the same scope of works (or some appropriate modification thereof), but without the
          need for an infrastructure agreement relating to those works. In this context it appears as though
          subparagraphs (a) through (e) of the current Condition 63 require very little amendment, with the
          only substantive amendment necessary being to the first part of the condition, prior to those
          subparagraphs.

5.3       The condition would require ongoing compliance, much like any other condition of approval,
          providing both parties with adequate certainty as to the future of the works and the development
          more generally.

5.4       Such a condition would be no different to a condition requiring external road upgrade works and
          would, in our view, provide sufficient certainty to both the Council and the applicant/developer
          with respect to the works moving forward.

If you have any queries regarding the above, please contact us.

Yours sincerely




Michael Marshall
Partner
T +61 7 3338 7525
M 0407 914 748
E     [email protected]




3 See section 347(f) Sustainable Planning Act 2009.




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