Purpose of the example agreement
An example Affordable Housing Agreement based on a section 173 has been developed to help Responsible Authorities and landowners to negotiate voluntary Affordable Housing Agreements.
It is not mandatory to use any part of the example agreement, however, it is recommended that a reference to ‘affordable housing’ is included in the title of any section 173 agreement negotiated.
Including a reference to ‘affordable housing’ in the title of the section 173 agreement will assist the Department of Environment, Land, Water and Planning to monitor affordable housing agreements.
The example agreement contains a selection of optional clauses that could be included in an Affordable Housing Agreement. The selection of optional clauses provided are by no means exhaustive.
Users of the example agreement are advised to refer to the following guidance material prior to using the example agreement:
Frequently Asked Questions
Preparing and negotiating an Affordable Housing Agreement will require input from a range of experts including strategic and statutory planning staff, an affordable housing subject-matter-expert, and legal services.
While it is statutory and strategic planning staff who will be managing any development, permit variation, permit application or rezoning process there may be other staff within Council who are best placed to negotiate an Affordable Housing Agreement – social planners will bring a sound understanding of the requirements of managing affordable housing, while property officers may have experience in negotiating development or property deals.
As with other matters in planning, a Council may decide to build the skills of one or two staff members who can specialise in affordable housing (in addition to their existing role) or they may contract in specific expertise. In some cases, they may have a relationship with a registered housing agency who can provide advice and support in negotiating an agreement.
The Department of Environment, Land, Water, and Planning have prepared this guidance to help council staff and developers in their negotiations. Registered housing agencies may also be able to provide advice on their requirements.
While affordable housing is a relatively new component of the planning framework, there are also consultants that specialise in affordable housing.
An Affordable Housing Agreement can set out whether the provision of affordable housing is delivered through a contribution of land, money, or dwellings. If the provision is by way of land or money an option may be for the asset or cash contribution to be lodged through an approved Housing Trust who can administer the land or cash contributions to increase affordable housing.
While it is voluntary to enter into an Affordable Housing Agreement, once that agreement is secured through a S173, the agreement is a legally binding contract.
Entering into an Affordable Housing Agreement is a voluntary process. If parties are not able to reach an agreement, then the assessment of the proposed development should proceed.
As the provision of affordable housing is an objective of the Planning and Environment Act 1987 from 1 June 2018, the Responsible Authority may seek information on how the applicant responds to this objective of the Act.
A Responsible Authority should have a strategic basis, supported by research and assessment, as they would when seeking to achieve any objective in the Planning and Environment Act 1987 Act.