Section 173 Agreement

Preparing an Agreement

Section 173 Agreements must be prepared by a legal practitioner. It is at the discretion of the owner to engage someone to prepare the Agreement. Council has engaged Harwood Andrews to check Agreements and to register Agreements on Title.

A checking/ review fee will be incurred if the Agreement is drawn up by a firm other than Harwood Andrews.

You may choose to use Harwood Andrews to draw up the Agreement and avoid the checking fee. For more information contact Clare McKenna by email at CMcKenna@ha.legal, by phone on 5226 8533, or through their online portal at http://harwoodandrews.com.au/173

Ending an Agreement

There are two ways to end an Agreement:

  1. Section 177(2) of the Planning and Environment Act 1987 allows the ending of an Agreement by agreement between the responsible authority and all persons who are bound by any covenant in the agreement. This section of the Act would normally only be available where the ending of the Agreement is unlikely to be of interest to any other person.
  2. Section 178A allows an owner of land, or a person who has entered into an Agreement under Section 173 in anticipation of becoming an owner of the land, to apply to the responsible authority for agreement to a proposal to end an agreement in respect of that land. The 178A process must be accompanied by the Application Form for Amending or Ending a Section 173 Agreement(PDF, 62KB) , and the relevant fee. The application can only be made by the owner of the land, and not a representative of the owner. The owner could be represented by another person as a contact.

Once an application is made to end an agreement, the application cannot be amended.

What happens next?

Council then has to consider whether to provide in principle support as required by Section 178A(3).

If in principle support is provided, notice of the application must be given in the manner required by Section 178C of the Act.

Section 178B outlines the matters to be considered in considering the proposal.

Section 178E outlines the decision Council can make on the application.

Note: Council can, on its own initiative, propose to end or amend an agreement.

Amending an Agreement

There are two ways to amend an Agreement:

  1. Section 178 of the Planning and Environment Act 1987 allows the amending of an Agreement by agreement between the responsible authority and all persons who are bound by any covenant in the agreement. This section of the Act would normally only be available where the amending of the Agreement is unlikely to be of interest to any other person.
  2. Section 178A allows an owner of land, or a person who has entered into an Agreement under Section 173 in anticipation of becoming an owner of the land may apply to the responsible authority for agreement to a proposal to amend an agreement in respect of that land. The 178A process must be accompanied by the Application Form for Amending or Ending a Section 173 Agreement and the relevant fee. The application can only be made by the owner of the land, and not a representative of the owner. The owner could be represented by another person as a contact.

Once an application is made to amend an agreement, the application cannot be amended.

What happens next?

Council then has to consider whether to provide in principle support as required by Section 178A(3).

If in principle support is provided, notice of the application must be given in the manner required by Section 178C of the Act.

Section 178B outlines the matters to be considered in considering the proposal.

Section 178E outlines the decision Council can make on the application.

 

Note: Council can, on its own initiative, propose to end or amend an agreement.

Amending a plan referenced in an agreement

If the Planning Permit containing the plan is still valid, there may be an opportunity to amend the plan. You should speak to a Planning Officer to obtain guidance on this issue.

If the Planning Permit is spent (for example in the case of a subdivision, the titles are issued) there is no opportunity to amend the plan. In the past, Council has amended these plans, but a Supreme Court Decision in early 2017 has outlined that this option is not available