Side or civil agreements are private arrangements that individuals and applicants for consent sometimes enter into. They can, for example, involve payment in exchange for a specific limitation on a development, and/or payment in compensation for an adverse effect or some other agreement. If the side agreement means that an affected party agrees to sign an affected party approval form (s95E) then the council can disregard an effect on that party.
A council would not normally have any role in the supervision or enforcement of side agreements between parties. It is possible that a council itself may be a party to a side agreement. However, in this situation a council operational or land owner function may need to be separated from the role of the council as a consent authority.
In some situations a side agreement may result in an applicant agreeing to make a specific change to an application. It is a matter between the parties whether such a side agreement is discussed with the council and the change to an application made.
Councils need to be aware of the risk that a side agreement may result in an actual or potential adverse effect not being highlighted by an applicant or a potentially adversely affected person because of a side agreement that those parties have entered into. However, the effect will still occur. For example, a side agreement that involves payment to compensate for an adverse effect may not extend to subsequent owners of land that experience the adverse effect. Therefore, a reporting officer needs to appreciate that there may be adverse effects that need to be considered that a potentially adversely affected person may not identify.
Generally, a council should not have regard to a side agreement when processing consents and preparing conditions.
