Parties should consider including minimum planning requirements in the development agreement. Minimum planning requirements set the minimum number of units agreed or the size of commercial construction. If minimum planning requirements are not met, the parties may agree to appeal the planning authority`s decision or terminate the operating contract. The State Revenue Commissioner assessed the Duties Act 2000 (Vic) land transfer tax as the sum of the sums paid by Lend Lease to VicUrban under the development agreement. Lend Lease objected to the assessment and argued that the consideration for the transfer could only be the amount set in the contract to sell the land. Lend Lease submitted that the amounts that could or would be the subject of a lend Lease contribution to VicUrban`s development costs and the amounts that would be paid as a share of the sums that Lend Lease would make on its sale of the land were not part of the transfer consideration3. If the parties share control over development, it is worth including appropriate deadlock provisions to ensure that development is not impeded. The development agreement should be developed to minimize the possibility of a deadlock. The content of the deadlock provisions is a matter of negotiation, while the parties should ensure that they contain at least some form of dispute resolution.
The risk of planning is the risk that the planning authority will not approve the project in the proposed form. The planning authority may authorize construction under unacceptable conditions, refuse construction or request construction modifications. It may be wise for the parties to negotiate the circumstances in which they will challenge the decision of a planning authority and to what extent they exercise the right of appeal and take into account the appropriate conditions in the agreement. This should help avoid a deadlock scenario. The points to be considered and protected are different for each type of development agreement. However, any type of land transfer is important because it can have tax and tax consequences for both parties and jeopardize the viability of development. The land use contract should include a guarantee from the landowner for the charges and guarantees currently on the ground and, in the case of existing loans, the amounts guaranteed by those loans. The developer must ensure that to avoid the creation of constructive trust, the parties should ensure that the development agreement does not give the developer the power to require the transfer of land to a given part, with the benefit of selling to the developer.