Can councils still use their s50A Carparking Funds?

Many councils established carparking funds (s50A Carparking Funds) pursuant to Section 50A of the (now repealed) Development Act 1993 (Development Act). The Planning, Development and Infrastructure Act 2016 (PDI Act) contains transitional provisions to enable s50A Carparking Funds to automatically continue to operate as ‘funds’ under Section 197 of the PDI Act. However, this continuation is not without limitations.

Section 197 relates to offset schemes more broadly, not only in relation to carparking offsets. This statutory regime pertains to two distinct elements, namely ‘schemes’ and ‘funds’. s50A Carparking Funds do not automatically form part of a ‘scheme’ pursuant to Section 197 and the transitional provisions provide that it is unnecessary for such s50A Carparking Funds to form a part of a ‘scheme’.

Unfortunately, this leads to some difficulties and limitations with the continued use of s50A Carparking Funds. There is no statutory ability under Section 197 to vary an existing ‘fund’. In practice, councils may wish to vary a s50A Carparking Fund to change the designated area to which the fund applies, the rate of contributions, or the purposes to which the contributions are applied.

Any change a council wishes to take from the existing approach under the s50A Carparking Fund will need to be implemented through the establishment of a “scheme” approved by the Minister under Section 197 (and preferably also a new ‘fund’ accompanying that ‘scheme’).

No council has yet established an offset ‘scheme’ (and associated ‘fund’) under Section 197 of the PDI Act. The Urban Tree Canopy Off-Set Scheme has been established by the Minister for Planning and is the only offset ‘scheme’ thus far. There is presently no PLUS template for establishment of a ‘scheme’ or ‘fund’ under Section 197, but any such request should contain sufficient information to enable the Minister for Planning to properly consider the proposal.

If your council would like to change the approach in its existing s50A Carparking Fund or would like to establish a new offset scheme for matters beyond just carparking, please contact Rebecca McAulay on 08 8210 1278 or rmcaulay@normans.com.au.