What is a work-in-kind (WIK) agreement?
A work-in-kind agreement (WIK agreement) is an agreement between a person liable to pay the Growth Areas Infrastructure Contribution (GAIC) and the Minister for Planning. Under a WIK agreement the liable person agrees that they will provide land and/or works (construction of state infrastructure), instead of a cash payment, to meet the whole or part of their GAIC liability.
The land or works must be situated in a growth area and be of a type that can be funded from the Growth Areas Public Transport Fund or the Building New Communities Fund.
Who are the parties to a WIK agreement?
The parties to a WIK agreement include the liable person, the Minister for Planning, and may also include additional parties such as a public authority, other government ministers or another landowner.
Entering into a WIK agreement
In terms of a WIK agreement:
- It must be entered into before the GAIC is payable.
- It can be entered into to discharge a GAIC liability whether or not that liability was triggered before 30 June 2011.
- It can be entered into in conjunction with a deferral or a staged payment approval.
- The Minister for Planning must consult with the relevant Minister before entering into a WIK agreement. If the value of the WIK agreement exceeds $2 million, the Minister for Planning must obtain approval from the Treasurer.
WIK applications must be lodged with the Victorian Planning Authority, which can assist you further with your application. You can also find model WIK agreements and WIK guidelines on the Victorian Planning Authority website.
Matters included in a WIK agreement
A WIK agreement must include:
- A description of works to be carried out, and of the land on which the works are to be carried out.
- A description of land to be transferred.
- The due date by which the agreement or any stage of the agreement is to be performed.
- The agreed value of land to be transferred and/or works to be carried out.
- The method(s) of calculating the value of works if they are only partly carried out.
- Dispute resolution procedures.
- Any other matters that the Minister for Planning thinks appropriate.
Restrictions on land dealings
A WIK agreement may contain a term that restricts a person who has entered into the agreement, unless consent from the Minister for Planning is obtained, from any dealing(s) with:
- Land that is to be transferred under the WIK agreement.
- Land on which works are to be carried out under the WIK agreement.
- The whole or part of the land in respect of which the GAIC liability is imposed.
While ‘dealing’ does not include those authorised under the WIK agreement it includes entering into any sale, transaction or arrangement, or obtaining or granting any lease, licence or approval, with respect to the land, or making any improvements of a durable nature on it.
Performance of a WIK
A person who has entered into a WIK agreement to meet a GAIC liability must notify the Victorian Planning Authority in writing of:
- the performance of the WIK agreement,
- the performance of any stage by a due date specified under the WIK agreement, or
- if the agreement is not wholly performed by the due date, how much of the agreement has been performed.
The Victorian Planning Authority must then determine:
- Whether a WIK agreement or a stage of it has been performed by the due date.
- If a WIK agreement has only been partly performed by the due date, the value of the land or works provided under the agreement.
The Victorian Planning Authority must notify the Commissioner of State Revenue of its determination.
Upon receiving the notification from the Victorian Planning Authority, a person who has entered into a WIK agreement to meet a GAIC liability is taken to have paid to the Commissioner an amount equivalent to the agreed value of what has been performed, whether wholly, as a stage thereof or only in part.
Default of WIK
If a person has entered into a WIK agreement and fails to perform that agreement, or a stage thereof, by the due date, and the GAIC liability has been deferred or is subject to a staged payment arrangement, the whole of the GAIC liability becomes immediately payable.
A tax default, under the Taxation Administration Act 1997, will occur attracting interest and penalty tax from what would have been the last day for payment of the whole of the GAIC liability.
Despite the default, the person remains liable under the WIK agreement to perform their obligations under the agreement.