Section 173 Agreement
What is Section 173 Agreement?
In Victoria, section 173 of the Planning and Environment Act 1987 bridges an agreement signed voluntarily between a competent authority, usually a local council, and an existing or potential landowner. This legally binding contract, also known as the Section 173 agreement, lays forth precise guidelines and requirements for the development or use of land. When a condition is included, it becomes a crucial component of the land title, and all subsequent owners are bound by its conditions. Preventing subdivisions, implementing phased projects, or obtaining public liability insurance for a pedestrian way are typical conditions of this contract.
If the council and owner of the land are part of the agreement, different organisations such as anyone occupying the land, a developer interested in the land or a government authority who has power over the land, can be included in the agreement. The purpose of an agreement is to make it easier to achieve specific planning objectives for an area or particular parcel of the land than is possible with other statutory mechanisms.
Pros and Cons:
Section 173 Agreements can encompass both positive and negative obligations such as requiring landowners to commit to providing amenities like shared walkways or maintaining affordable housing, thus actively contributing to community development.
Pros:
On one hand, entering into a Section 173 agreement may:
- Ensure the planning objectives are met and maintained over a long period;
- Have a tailored approach that is binding;
- Offer a level of permanence that standard permits may lack, due to them being part of the land title; and
- They don’t contradict the planning scheme.
Cons:
Conversely, signing a Section 173 agreement can:
- Be costly;
- Carry an administrative burden;
- Be challenging;
- Be difficult to remove or vary the terms; and
- Leave an extensive power vested in the responsible authority regarding your land.
Whether a Property is Subject to a Section 173 Agreement
Identifying whether your property is subject to a section 173 agreement is relatively straightforward as these terms are listed on the land title. If one is discovered, it is imperative to understand its implications fully and while rare, the possibility of amending or removing these agreements exists, albeit through a complex process governed by the responsible authority.
Creating an Agreement:
These agreements are primarily based on negotiation. With well-defined goals in hand, all sides need to participate actively to ensure a fair and effective result. Ensuring transparency in the operations of the competent authority is crucial to prevent any perception of undue benefit. Establishing trust is essential to reaching a mutually beneficial arrangement that benefits the community and the land.
The Content of an Agreement:
In addition to establishing guidelines, the section 173 agreements clarify roles and guarantee that prejudice won’t inadvertently influence decisions in the future. Parties must exercise extreme caution to ensure that the agreement does not overreach its jurisdiction or contain any promises that could impede the ability to make objective choices in the future.
Transparency and Accessibility:
Section 173 Agreements are no exception to the rule that transparency is crucial in property law. Ensuring the integrity of these agreements, updating them as needed, and providing public access to them are the responsibilities of responsible authorities. This dedication to transparency promotes confidence and guarantees that all parties involved may make defensible decisions considering the terms of the agreement.
Section 173 Agreements serve as essential tools in property law, offering clarity, commitment, and a framework for sustainable development. While they present opportunities for effective planning and development, navigating their complexities requires careful consideration and, often, legal expertise. As with any legal matter, seeking professional advice is paramount to making informed decisions in property transactions.
