Second Response to Information Request - 2 May 2018 · 132007.12.8

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“Adamson Town Planning, specialising in providing higher order town planning advice”




       c) State that the applicant is responsible for obtaining approval for the design and
          construction of the various services from the relevant authority;
       d) State that the design and construction of the services shall be wholly at the applicant's
          expense and shall not entail a financial encumbrance on future purchasers of the
          proposed lot, and
       e) Be to the satisfaction of the Department of Natural Resources and Water (DNR&W), If
          DNR&W does riot consent to the private services crossing their land the applicant shall
          find an alternative means of providing services to the balance of Lot 4 prior to the use
          commencing.

  The advice provided by Thomson Geer is provided as Attachment 1. The advice effectively
  confirms that there is no need for an infrastructure agreement given the pathway bisecting
  the land is within road reserve. This is because:
  1) there is no necessity for the outcomes sought in Condition 63 to be imposed by way of
      infrastructure agreement, because:
      (a) it is lawful for the Council to impose conditions requiring works in the existing public
          roadway and for the works to be undertaken at the applicant's cost; and
      (b) it is lawful for the Council to impose conditions requiring the ongoing maintenance of
          those services;
  2) it is in fact less desirable for the parties to enter into an infrastructure agreement (as
      contemplated by the condition), particularly from the point of view of Council, given:
      (a) there are costs associated with drafting, reviewing and then implementing an
          infrastructure agreement (for both parties) that can be readily avoided by utilising a
          condition of approval;
      (b) Condition 63, already requires the applicant to seek further approvals for operational
          work and there is an ability for the Council to appropriately condition any detailed
          requirements that may be necessary for the works, which means that an infrastructure
          agreement adds nothing to the process;
      (c) a condition of approval provides greater clarity and certainty moving forward, as future
          owners of the development can be expected to be aware of the conditions associated
          with an approval but are less likely to be aware of a related infrastructure agreement.

  It is also noted that Thomson Geer has advised that the 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 to enter into an infrastructure agreement;
  however, such conditions are no longer lawful and are expressly prohibited by section 66(1)(b)
  Planning Act 2016. Consequently, it is requested that condition 63 be amended as follows:

  With regard to the provision of private services within the 5m wide road reserve that divides the
  two separate parts of Lot 3 on SP264909, prior to the use commencing on the north western part
  of Lot 3, the applicant shall:

       a) provide for the installation, maintenance and preservation of the private water and
          electrical services that supply the separate parts of Lot 3;

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“Adamson Town Planning, specialising in providing higher order town planning advice”




       b) provide for the maintenance of the road reserve in those parts affected by the private
          services;
       c) be responsible for obtaining approval for the design and construction of the various
          services from the relevant authority;
       d) undertake the design and construction of the services at the applicant's expense and shall
          not entail a financial encumbrance on future purchasers; and
       e) undertake all works to the reasonable satisfaction of the Council.

  It requested as part of the current ‘other changes’ application, that Council amend condition
  63 as suggested above and remove the requirement for an infrastructure agreement. This is
  because an infrastructure agreement is not necessary, with the design, construction and
  maintenance of private infrastructure by the applicant able to be dealt with by a condition of
  approval as is normally the case. Further, the cost of the preparation, review and
  implementation of an infrastructure agreement can be avoided for both Council and the
  applicant.

  Should you have any questions with respect to the above, please contact me.

  Yours faithfully




  Shane Adamson (BEngTech, GDURP, MPIA)
  Town Planning Specialist
  Director - Adamson Town Planning Pty Ltd




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