Background to the Huntlee Case
- Land & Environment Court case
In 2010 the Minister included Huntlee’s development site in the Hunter Valley as a State Significant Site under the Major Projects SEPP, following execution of a VPA to administer the dedication of conservation lands by way of offset and a contribution of $1.1million for management of those lands.
The Land & Environment Court, ruled including the development site in the Major Projects SEPP was invalid, partly on the basis that the VPA lacked an additional, independent and enforceable assurance that the obligations to dedicate and pay money would actually be fulfilled. Mere registration of the VPA on title was not a suitable enforcement mechanism.
Yesterday, the Court of Appeal overturned the L&E Court’s decision. The Huntlee VPA still stands and the development site was validly included in Schedule 3 of the Major Projects SEPP.
Enforceability Requirements in a VPA
The Environmental Planning & Assessment Act provides that a VPA must contain provisions for:
“the enforcement of the agreement by a suitable means, such as the provision of a bond or guarantee, in the event of a breach of the agreement by the developer” (s.93F(3)(g)).
Who decides what is a suitable means of enforcement?
The nub of the Court of Appeal decision is that:
- a failure to comply with s.93F(3)(g) does not of itself render a VPA void; and
- it is a matter for the Planning Authority (usually Council or the Minister) to decide what is a suitable means of enforcement.
The suitability of the enforcement measures is not an objective issue that the Courts can readily substitute with its own opinion. Providing the Planning Authority’s assessment of what amounts to a suitable enforcement means falls within the spectrum of what is reasonable, the Court won’t override it.
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