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DRAFT PLANNING AGREEMENT VIVIEN PLACE, CASTLE HILL

THE HILLS SHIRE COUNCIL CASTLE 7 PTY LTD

The Hills Shire Council August 2018

3 Columbia Court, Baulkham Hills NSW 2153

NOTE

In accordance with Council's resolution of 26 June 2018, the draft

Voluntary Planning Agreement was subject to an external legal

review. In accordance with Council's resolution the Voluntary

Planning Agreement has been updated to incorporate the

recommendations of the legal review.

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Planning Agreement Summary Sheet

Council Name The Hills Shire Council

Address 3 Columbia Court NORWEST, NSW 2153 Telephone (02) 9843 0555

Facsimile (02) 9843 0258

Email [email protected]

Representative Mr Michael Edgar – General Manager, The Hills Shire Council

Developer Name Castle 7 Pty Ltd (ABN 53 605 782 447) Address Level 1, 99 Alexander Street

CROWS NEST NSW 2065 Telephone 8436 9000

Facsimile 8436 9001

Email [email protected]

Representative Marco Novati

Land 1-6 Vivien Place, 1-7 Gay Street and 12 Gilham Street, Castle Hill NSW 2154 being the land legally known as the following:

1. Lot 10 DP 227212.

2. Lot 9 DP 227212.

3. Lot 8 DP 227212.

4. Lot 7 DP 227212.

5. Lot 6 DP 227212.

6. Lot 5 DP 227212.

7. Lot 4 DP 227212.

8. Lot 30 DP 259208.

9. Lot 31 DP 259208.

10. Lot 32 DP 259208.

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11. Lot 11 DP 227212.

Instrument Change The amendment of The Hills Local Environmental Plan 2012, as it relates to the Land, generally in accordance with the Planning Proposal

Planning Proposal 2/2017/PLP Dedication Land Not applicable

Works See Schedule 3

Monetary Contributions Security Amount

See clause 6 Not applicable

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CONTENTS

1. Defined meanings ... 6

2. Planning agreement under the Act ... 6

3. Application of this document ... 6

4. No restriction on Council’s Powers ... 6

5. Operation of this Agreement ... 7

6. Monetary Contributions... 7

7. Easement and Land Swap ... 7

8. Works ... 8

9. Ownership of Works ... 9

10. Access to the land and location of Works ... 9

11. Protection of People, Property and the Environment ... 9

12. Damage and Repairs to the Works ... 9

13. Variation of Works ... 9

14. Failure to Carry out Works ...10

15. Works-As-Executed-Plan...10

16. Rectification of Defects ...10

17. Cost of Works carried out by the Council ...11

18. Indemnity and Insurance ...11

19. Application of s7.11 and s7.12 of the EPAA ...12

20. Termination ...12

21. Consequences ...12

22. Private Certifiers ...12

23. Notices ...13

24. Breach Notice and Rectification ...13

25. Dispute resolution ...13

26. Registration of document on Title ...15

27. Costs ...16

28. GST ...16

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29. General ...16 30. Definitions and interpretation ...18

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Planning Agreement

Dated

Parties

The Hills Shire Council ABN 25 034 494 656 of 3 Columbia Court, Baulkham Hills, NSW 2153 (Council)

Castle 7 Pty Ltd ABN 53 605 782 447 of Level 1, 99 Alexander Street, Crows Nest, NSW 2065 (Developer)

Background

A. Council is the consent authority pursuant to the Environmental Planning and Assessment Act 1979 (NSW) (Act) for the Proposed Development.

B. The Developer is, or will be, the registered proprietor of the Land.

C. Through lodgement of the Planning Proposal, the Developer has made an application to the Council for the Instrument Change so as to enable an application to be made to the Council for Development Consent.

D. The Developer acknowledges that if the Development Consent is granted and the Proposed Development carried out it is likely to increase the demand for the provision of public facilities.

E. As a consequence of the matters set out above, the Developer has offered to provide the Development Contributions on, and subject to, the terms set out in this Agreement if the Instrument Change occurs.

Operative provisions

1. Defined meanings

Words used in this document and the rules of interpretation that apply are defined and explained in clause 30 of this document.

2. Planning agreement under the Act

The Parties agree that this document is a planning agreement within the meaning of subdivision 2, Division 7.1, Part 7 of the Act.

3. Application of this document

This document is made in respect of the Instrument Change and applies to the Land.

4. No restriction on Council’s Powers

This Agreement or anything done under this Agreement:

4.1 is not to be taken as approval or consent by Council as a regulatory authority; and

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4.2 does not in any way inhibit, deter or prejudice Council in the proper exercise of its functions, duties or powers,

pursuant to any legislation including the Act, the Roads Act 1993 (NSW) and the Local Government Act 1993 (NSW).

5. Operation of this Agreement

5.1 Subject to clause 5.2, this Agreement operates from the date it is executed by both Parties.

5.2 The Parties acknowledge that the Developer is not bound to provide the Development Contributions unless, and until, Council grants the Development Consent.

6. Monetary Contributions 6.1 Payment

(a) For the first 132 dwellings approved pursuant to the Development Consent comprising a mix of 33 x 1 bedroom, 72 x 2 bedroom and 27 x 3 bedroom, the Developer must pay Monetary Contributions in accordance with the Castle Hill North Contributions Plan which is applicable at the time a Development Consent is issued.

(b) For any Additional Dwellings for which Development Consent is issued, the Developer must pay the Monetary Contributions for each Dwelling by way of cheque or electronic bank transfer to Council's nominated bank account in accordance with, and by the times set out in, Schedule 2.

6.2 Indexation

On each anniversary of the date of this document the Monetary Contribution applicable immediately prior to that anniversary will be increased by the same percentage as the annual percentage increase, if any, in the Producer Price Index most recently published prior to the relevant anniversary. The increased Monetary Contribution will be the amount deemed to be set out in Schedule 2 during the relevant period.

6.3 Public Purpose

The Council will use reasonable endeavours to apply the Monetary Contributions towards the public purposes specified in Schedule 2.

7. Easement and Land Swap

7.1 The Developer must at its cost grant and register the Easement for the benefit of Council, on terms acceptable to Council, over the Land..

7.2 The minimum area of the Easement will be approximately 1,570m2.

7.3 The Registration of the Easement must be completed before the issue of an Occupation Certificate for the Development of the Land.

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7.4 The Developer and/or any successor(s) in title of the Land will be responsible for the repair and maintenance of the Easement.

7.5 The Developer and/or any successor in title of the Land is to provide and maintain a

$10,000,000 public indemnity insurance policy for any claims and damages arising from the use of the Easement. The indemnity amount is to be indexed by CPI.

7.6 The parties acknowledge that the Developer and Council will seek the closure, and land swap, of Vivien Place (owned by Council) for the dedication of the new

roadway by the Developer (as shown in the Location Plan) on a like for like basis pursuant to a separate agreement as part of a future development application for the Land.

8. Works

8.1 Obligation to Carry Out Works

(a) The Developer is to carry out and complete the Works on the Land at the locations shown on the Location Plan comprising both the Road Works and the Embellishment Works.

(b) The Developer’s obligation under paragraph (a) exists irrespective of whether the Developer:

(i) carries out the Works itself, or

(ii) enters into an agreement with another person under which the other person carries out the Works on the Developer’s behalf.

(c) Before the Developer commences the Works, the Developer, at its own cost, is to prepare and submit to the Council or a person specified by the Council, detailed plans and specifications in relation to the item.

(d) Council, acting reasonably, may request that the Developer amend the detailed plans and specifications, and if it makes that request, the Developer must amend and resubmit the detailed plans and specifications with Council for approval under this clause.

(e) The Developer is not to commence the Works unless the Council or the person specified by the Council has given the Developer written approval of the plans and specifications relating to the item.

(f) The Developer is to carry out and complete the Works in a good and workmanlike manner having regard to the intended purpose of the Works and otherwise to the satisfaction of Council, in accordance with:

(i) the Development Consent, and

(ii) all applicable laws, including those relating to work health and safety, and

(iii) this Agreement, and

(iv) the written approval given under paragraph (c).

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(g) It is the Developer’s responsibility to ensure that everything necessary for the proper performance of its obligations under this Agreement is supplied or made available.

(h) The Works must be completed prior to the issuance of an Occupation Certificate by Council in respect of the Proposed Development.

9. Ownership of Works

9.1 Ownership of the pedestrian through site link as identified in Schedule 3 is retained by the Developer and/or any successor(s) in the title of the Land.

10. Access to the land and location of Works

10.1 The Developer is to permit the Council, its officers, employees, agents and contractors to enter the Land at any time, upon giving reasonable prior notice, in order to inspect, examine or test any the Works.

10.2 The Developer must enable Council, its officers, employees, agents and contractors access to the location of the Works where this is not the Land, Council land or a public road.

11. Protection of People, Property and the Environment

11.1 The Developer is to ensure in relation to the carrying out of the Works that:

(a) all necessary measures are taken to protect people, property and the Environment,

(b) unnecessary interference with the passage of people and vehicles is avoided;

(c) nuisances and unreasonable noise and disturbances are prevented;

(d) and all relevant laws and regulations with respect to water, air, noise and land pollution (including ‘pollution incidents’) as defined under the Protection of the Environment Operations Act 1997 (NSW).

12. Damage and Repairs to the Works

12.1 The Developer, at its own cost, is to repair and make good to the satisfaction of the Council any loss or damage to the Works from any cause whatsoever which occurs prior to the date on which the Works is Handed-Over to the Council.

13. Variation of Works

13.1 The Works are not to be varied by the Developer, unless:

(a) the Parties agree in writing to the variation, and

(b) any consent or approval required under the Act or any other law to the variation is first obtained, and

(c) the Developer bears all of the Council’s costs of and incidental to agreeing to and approving the variation.

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13.2 For the purposes of clause 13.1 a variation may relate to any matter in relation to the Works that is dealt with by this Agreement.

13.3 The parties agree that the date for Hand-Over of the Works may be extended due to any Force Majeure Event.Failure to Carry out Works

14.1 If the Council considers that the Developer is in breach of any obligation under this Agreement relating to the carrying out of the Works, the Council must give the Developer a notice requiring:

(a) the breach to be rectified to the Council’s satisfaction, or

(b) the carrying out of the Works to immediately cease, except in relation to the rectification of the breach, and the breach to be rectified to the Council’s satisfaction.

14.2 A notice given under clause 14.1is to allow the Developer a reasonable period (and in any case not less than 28 days) to rectify the breach.

14.3 If the Developer fails to rectify the breach the subject of a notice given under clause 14.1, the Council may carry out and complete or make safe the Works.

14.4 For the purposes of clause 14.3Error! Reference source not found.:

(a) the Developer must allow the Council, its servants, agents and contractors to enter the Land for the purpose of completing the Works, and

(b) the costs incurred by the Council in carrying out, completing, or making safe the Works, may be recovered by the Council from the Developer as a debt due in a court of competent jurisdiction.

15. Works-As-Executed-Plan

15.1 The Developer is to submit to the Council a full Works-As-Executed-Plan in respect of the Works the subject of the notice prior to them being completed under this Agreement.

15.2 The Developer shall provide with the Work-as-Executed Plan(s) all appropriate certificates to verify that the Works have been carried out in accordance with relevant standards.

16. Rectification of Defects

16.1 During the Defects Liability Period the Council may give to the Developer a Rectification Notice in relation to the Works specifying:

(a) the Works requiring rectification,

(b) the action required to be undertaken by the Developer to rectify those Works, and

(c) the date on which those Works are to be rectified.

16.2 The Developer must comply with a Rectification Notice at its own cost according to the terms of the Notice.

16.3 When the Developer considers that rectification is complete, the Developer may give to the Council a Rectification Certificate relating to the Works the subject of the relevant Rectification Notice.

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16.4 A Rectification Certificate discharges the Developer from any further obligation to comply with the relevant Rectification Notice.

16.5 If the Developer does not comply with a Rectification Notice, the Council may do such things as are necessary to rectify the defect and may

recover, as a debt due in a court of competent jurisdiction, the costs incurred by the Council in rectifying the defect.

17. Cost of Works carried out by the Council

17.1 The Parties acknowledge and agree that where, in accordance with this Agreement, the Council incurs a cost in carrying out, completing or rectifying a defect in the Works, the Council may recover from the Developer in a court of competent jurisdiction its full costs.

17.2 The Council’s costs of carrying out, completing or rectifying the Works in accordance with this Agreement include, but are not limited to:

(a) the reasonable costs of the Councils servants, agents and contractors reasonably incurred for that purpose,

(b) all fees and charges necessarily or reasonably incurred by the Council in order to have the Works carried out, completed, made safe or rectified, and (c) without limiting the generality of the preceding sub-clause, all legal costs and

expenses reasonably incurred by the Council, by reason of the Developer's failure to comply with this Agreement.

18. Indemnity and Insurance

18.1 The Developer indemnifies the Council, its employees, officers, agents, contractors from and against all losses, damages, costs (including legal costs on a full indemnity basis), charges, expenses, actions, claims and demands whatsoever which may be sustained, suffered, recovered or made arising in connection with the carrying out by the Developer of the Works and any other obligation under this Agreement, except to the extent that such losses, damages, costs, charges, expenses, actions, claims and demands are caused by Council, its employees, officers, agents and contractors..

18.2 The Developer is to take out and keep current to the satisfaction of the Council the following insurances in relation to the Works up until the relevant date of Hand-Over to Council:

(a) contract works insurance, noting the Council as an interested party, for the full replacement value of the Works (including the cost of demolition and removal of debris, consultants’ fees and authorities’ fees), to cover the Developer’s liability in respect of damage to or destruction of the Works,

(b) public liability insurance for at least $10,000,000 for a single occurrence, which covers the Council, the Developer and any subcontractor of the Developer, for liability to any third party,

(c) workers compensation insurance as required by law, and (d) any other insurance required by law.

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18.3 If the Developer fails to comply with clause 18.2, the Council may effect and keep in force such insurances and pay such premiums as may be necessary for that purpose and the amount so paid shall be a debt due from the Developer to the Council and may be recovered by the Council as it deems appropriate including:

recovery as a debt due in a court of competent jurisdiction.

18.4 The Developer is not to commence to carry out the Works unless it has first provided to the Council satisfactory written evidence of all the insurances specified in clause 18.2.

19. Application of s7.11 and s7.12 of the EPAA

19.1 Section .7.11 of the Act applies to the first 132 Dwellings in respect of the Proposed Development.

19.2 This Agreement excludes the application of s.7.11 and s.7.12 of the Act to any Additional Dwellings forming part of the Proposed Development.

20. Termination

20.1 Instrument Change

This Agreement will terminate in the event that the Instrument Change does not occur.

21. Consequences

21.1 On the date of termination or rescission of this document, subject to the following sub-paragraphs each party releases each other from any obligation to perform any term, or any liability arising out of, this document after the date termination.

21.2 Termination or rescission of this document does not release either party from any obligation or liability arising under this document before termination or rescission.

22. Private Certifiers

Where Council is not the certifying authority for any aspect of the Proposed Development the Developer must on the appointment of a private certifier provide a copy of this Agreement to the private certifier.

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23. Notices

23.1 Any notice to or by a party under this document must be in writing and signed by the sender or, if a corporate party, an authorised officer of the sender.

23.2 Any notice may be served by delivery in person or by post or transmission by facsimile to the address or number of the recipient specified in the Summary Sheet or most recently notified by the recipient to the sender.

23.3 Any notice is effective for the purposes of this document upon delivery to the recipient or production to the sender of a facsimile transmittal confirmation report before 4.00pm local time on a day in the place in or to which the written notice is delivered or sent or otherwise at 9.00am on the next day following delivery or receipt.

24. Breach Notice and Rectification

24.1 If the Developer is, in the opinion of Council, in breach of a material obligation under this document, Council may provide written notice of the breach to the Developer and require rectification of that breach within a reasonable period of time (Breach Notice).

24.2 Unless there are compelling reasons to extend or abridge the period of time permitted for rectification, a reasonable period of time is taken to be fourteen days from receipt of written notification of the breach.

24.3 If the breach is not rectified within the time specified in the Breach Notice, or otherwise agreed between the Parties, Council may rectify the breach as the agent of the Developer and at the risk of the Developer. The Developer must pay all reasonable costs incurred by the Council in remedying the breach.

25. Dispute resolution 25.1 Disputes

If there is any dispute, difference of opinion or failure to agree relating to or arising from this document that dispute must be referred for determination under this clause.

25.2 No legal proceedings

The Parties must not bring or maintain any action on any Dispute (except for urgent injunctive relief to keep a particular position) until it has been referred and determined as provided in this clause.

25.3 Notice of disputes (Dispute Notice)

A Party referring a Dispute for determination must do so by written notice to the other parties which must specify the nature of the Dispute and a nominated officer of the referring party with sufficient authority to determine the Dispute.

25.4 Negotiated resolution and selection of expert

(a) On service of the Dispute Notice the receiving Parties must refer the Dispute to an officer with sufficient authority to determine the Dispute. The nominated officers of each Party must meet at least once and use reasonable endeavours to resolve the Dispute by negotiation within seven days of service of the

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nominated officer. By agreement, the nominated officers may employ the services of a mediator to assist them in resolving the Dispute.

(b) If the nominated officers are unable to resolve the Dispute within seven days of service of the Dispute Notice they must endeavour within the following seven- day period to appoint an expert by agreement. That appointment must be recorded in writing and signed by each nominated officer.

(c) If the nominated officers do not record the appointment of an expert within that second seven day period, the expert must be appointed, at the request of any party, by the President for the time being (or if none, the senior elected member) of the Law Society of New South Wales.

25.5 Assistance to the Expert (the Expert)

(a) Once the Expert has been appointed (the Expert), the Parties must:

(i) each use their best endeavours to make available to the Expert all information the Expert requires to settle or determine the Dispute; and (ii) ensure that their employees, agents or consultants are available to

appear at any hearing or enquiry called by the Expert.

(b) The Parties may give written submissions to the Expert but must provide copies to the other Parties at the same time.

25.6 Expert’s decision

(a) The decision of the Expert must:

(i) be in writing and give reasons; and

(ii) be made and delivered to the parties within one month from the date of submission of the dispute to the Expert or the date of completion of the last hearing or enquiry called by the Expert, if later.

(b) The Expert may conduct the determination of the Dispute in any way it considers appropriate but the Expert may, at its discretion, have regard to the Australian Commercial Disputes Centre’s guidelines for expert determination of disputes or such other guidelines as it considers appropriate.

(c) The Expert’s decision is final and binding on the parties.

(d) The Expert must act as an expert and not as an arbitrator.

25.7 Expert’s costs

(a) The Expert must also determine how the expenses relating to the reference of the Dispute (including the Expert’s remuneration) should be apportioned between the parties and in default of a decision by the Expert those expenses must be borne by the parties equally.

(b) In determining the apportionment of costs the Expert may have regard to what the Expert, in its reasonable opinion, considers to be a lack of good faith or a failure to use reasonable endeavours by any party in assisting the Expert or resolving the dispute between the parties’ nominated officers as required by this clause.

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25.8 Continual performance

Each Party must continue to perform its obligations under this document while any dispute is being determined under this clause.

26. Registration of document on Title 26.1 Acknowledgement

The Developer acknowledges that Council intends to register this document under section 7.6 of the Act on the Lands and on registration by the Registrar-General the document will be binding on and enforceable against the owners of the Lands from time to time as if each owner for the time being had entered into this document.

26.2 Consents to Registration

This document must be registered on the title of the Land by the Developer as soon as practicable after the Instrument Change is made. Each Party must promptly execute any document and perform any action necessary to affect the registration of this document on the title of the Land.

26.3 Release from Registration

Within thirty (30) days of receiving a written request from the Developer to do so, Council will release the Land (or part thereof) from registration of this Agreement where:

(a) the Development Contributions have been made (including completion of the Works); and

(b) no other money is owing to Council under this Agreement; and

(c) the Developer is not in breach of any of its obligations under this Agreement.

The obligations of the Council are satisfied when Council provides the Developer with a signed Request in registrable form for the release of registration of this Agreement.

26.4 Registration Expenses

The Developer must pay Council's reasonable expenses including registration fees, any stamp duty, legal costs and disbursements, for the registration of this document and the subsequent removal of registration, on an indemnity basis.

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27. Costs

The Developer must pay on demand Council’s reasonable costs and expenses including legal costs and disbursements, survey fees and consultant’s charges reasonably incurred in relation to:

(a) the preparation, review, amendment and finalisation of this Agreement, including all attendances and related advice;

(b) any action required of Council to implement this Agreement (c) any request by the Developer under the Agreement;

(d) any litigation or dispute resolution procedure involving the Council in respect of this Agreement in which no judgement or order is awarded against Council;

and/or

(e) any breach of a provision of this Agreement by the Developer.

28. GST

If any payment made by one party to any other party under or relating to this document constitutes consideration for a taxable supply for the purposes of GST or any similar tax, the amount to be paid for the supply will be increased so that the net amount retained by the supplier after payment of that GST is the same as if the supplier was not liable to pay GST in respect of that supply. This provision is subject to any other agreement regarding the payment of GST on specific supplies, and includes payments for supplies relating to the breach or termination of, and indemnities arising from, this document.

29. General

29.1 Assignment

(a) A party must not transfer any right or liability under this document without the prior consent of each other party, except where this document provides otherwise.

(b) In the event that the Developer enters into a contract for the sale of the Land the subject of the Development Consent, the Developer (as vendor) shall disclose to the purchaser the existence of this Agreement.

29.2 Governing law and jurisdiction

(a) This document is governed by and construed under the law in the State of New South Wales.

(b) Any legal action in relation to this document against any party or its property may be brought in any court of competent jurisdiction in the State of New South Wales.

(c) Each party by execution of this document irrevocably, generally and unconditionally submits to the non-exclusive jurisdiction of any court specified in this provision in relation to both itself and its property.

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29.3 Amendments

Any amendment to this document has no force or effect, unless effected by a document executed by the parties.

29.4 Third parties

This document confers rights only upon a person expressed to be a party, and not upon any other person.

29.5 Pre-contractual negotiation This document:

(a) expresses and incorporates the entire agreement between the parties in relation to its subject matter, and all the terms of that agreement; and

(b) supersedes and excludes any prior or collateral negotiation, understanding, communication or agreement by or between the parties in relation to that subject matter or any term of that agreement.

29.6 Further assurance

Each party must execute any document and perform any action necessary to give full effect to this document, whether before or after performance of this document.

29.7 Continuing performance

(a) The provisions of this document do not merge with any action performed or document executed by any party for the purposes of performance of this document.

(b) Any representation in this document survives the execution of any document for the purposes of, and continues after, performance of this document.

(c) Any indemnity agreed by any party under this document:

(i) constitutes a liability of that party separate and independent from any other liability of that party under this document or any other agreement;

and

(ii) survives and continues after performance of this document.

29.8 Waivers

Any failure by any party to exercise any right under this document does not operate as a waiver and the single or partial exercise of any right by that party does not preclude any other or further exercise of that or any other right by that party.

29.9 Remedies

The rights of a party under this document are cumulative and not exclusive of any rights provided by law.

29.10 Counterparts

This document may be executed in any number of counterparts, all of which taken

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29.11 Party acting as trustee

If a party enters into this document as trustee of a trust, that party and its successors as trustee of the trust will be liable under this document in its own right and as trustee of the trust. Nothing releases the party from any liability in its personal capacity. The party warrants that at the date of this document:

(a) all the powers and discretions conferred by the deed establishing the trust are capable of being validly exercised by the party as trustee and have not been varied or revoked and the trust is a valid and subsisting trust;

(b) the party is the sole trustee of the trust and has full and unfettered power under the terms of the deed establishing the trust to enter into and be bound by this document on behalf of the trust and that this document is being executed and entered into as part of the due and proper administration of the trust and for the benefit of the beneficiaries of the trust;

(c) no restriction on the party’s right of indemnity out of or lien over the trust's assets exists or will be created or permitted to exist and that right will have priority over the right of the beneficiaries to the trust's assets.

29.12 Representations and warranties

The Parties represent and warrant that they have power to enter into this document and comply with their obligations under the document and that entry into this document will not result in the breach of any law.

29.13 Severability

If a clause or part of a clause of this document can be read in a way that makes it illegal, unenforceable or invalid, but can also be read in a way that makes it legal, enforceable and valid, it must be read in the latter way. If any clause or part of a clause is illegal, unenforceable or invalid, that clause or part is to be treated as removed from this document, but the rest of this document is not affected.

30. Definitions and interpretation

In this document unless the context otherwise requires:

Act means the Environmental Planning and Assessment Act 1979 (NSW)

Additional Dwellings means the number of Dwellings approved under the Development Consent for the Proposed Development in excess of 132 Dwellings.

Bank Guarantee means a written guarantee without a time limit acceptable to Council issued by an Australian Bank.

Business Day means a day that is not a Saturday, Sunday, public holiday or bank holiday in New South Wales;

Construction Certificate has the same meaning as in the Act and refers to the Construction Certificate relating to the Development Consent;

Contribution Value means the amount specified in Column 4 of Schedule 3.

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Development Consent means a development consent for the Proposed Development.

Development Contributions means the provision of the Monetary Contributions, Works and registration of the Easement under this Agreement.

Dispute Notice means written notice provided by a Party referring a dispute for determination, specifying the nature of the dispute and a nominated officer of the referring party with sufficient authority to determine the dispute.

Defects Liability Period means twelve (12) months from the date an item of Work is notified as completed by Council..

Dwellings means a separate residential dwelling constructed on the Land (and which for the purpose of clarity includes detached and attached dwellings).

Easement means a public right of way (as a pedestrian through link between Gilham Street and 28-34 Pennant Street being Lot 51 DP 1022542) located generally in accordance with the Easement Plan in Schedule 3.

Embellishment Works means kerbing and guttering, concrete footpaths and drainage on the Land for a publicly accessible through site link as marked in green under the Easement Plan in Schedule 3.

Encumbrance includes any mortgage or charge, lease, (or other right of occupancy) or profit a prendre.

Environment has the same meaning as set out in the Dictionary to the Protection of the Environment Operations Act 1997 (NSW).

Force Majeure Event means any event or circumstance, or a combination of events or circumstances:

(a) which arises from a cause beyond the reasonable control of a party, including:

(i) an act of God,

(ii) strike, lockout, other industrial disturbance or labour difficulty,

(iii) war (declared or undeclared), act of public enemy, blockade, revolution, riot, insurrection, civil commotion,

(iv) lightning, storm, flood, fire, earthquake, explosion, epidemic, quarantine (v) embargo, unavailability of any essential equipment or materials,

unavoidable accident, lack of transportation, or

(vi) anything done or not done by or to a person, except the party relying on force majeure;

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(b) which the Developer takes all reasonable precautions to protect itself against, and uses all reasonable endeavours to mitigate the consequences of (which does not require the Developer to settle a labour dispute if, in the Developer’s opinion, that is not in its best interests); and

(c) which the Developer notifies the Council of, as soon as practicable after becoming aware of the event or circumstance.

GST means any tax, levy, charge or impost implemented under the A New Tax System (Goods and Services Tax) Act 1999 (Cth) (GST Act) or an Act of the Parliament of the Commonwealth of Australia substantially in the form of, or which has a similar effect to, the GST Act;

Hand-Over means the hand-over to the Council of the Works in accordance with this Agreement.

Instrument Change has the meaning set out in the Summary Sheet.

Item of Works means an item of the Works.

Land means the ‘Land’ as defined in the Summary Sheet.

Location Plan means the plan contained in Schedule 1.

Monetary Contributions means the monetary development contributions required to be paid to the Council in accordance with this agreement and as specified in Schedule 2.

Occupation Certificate has the same meaning as in the Act .

Party means a party to this document, including their successors and assigns.

Proposed Development means the development of the Land, including the construction of approximately 220 Dwellings.

Rectification Certificate means a compliance certificate within the meaning of section 109C(1)(a)(v) of the Act to the effect that work the subject of a Rectification Notice has been completed in accordance with the notice.

Rectification Notice means a notice in writing that identifies a defect in a work and requires rectification of the defect within a specified period of time.

Regulation means the Environmental Planning and Assessment Regulation 2000 (NSW).

Road Works means the construction of a road with area of 968 square meters along the western boundary of the Land as marked in blue under the Location plan in Schedule 1.

Works means the Embellishment Works and the Road Works.

Works-As-Executed-Plan means detailed plans and specifications of the completed Works.

(21)

30.2 Interpretation

In this document unless the context otherwise requires:

(a) clause and subclause headings are for reference purposes only;

(b) the singular includes the plural and vice versa;

(c) words denoting any gender include all genders;

(d) reference to a person includes any other entity recognised by law and vice versa;

(e) where a word or phrase is defined its other grammatical forms have a corresponding meaning;

(f) any reference to a party to this document includes its successors and permitted assigns;

(g) any reference to a provision of an Act or Regulation is a reference to that provision as at the date of this document;

(h) any reference to any agreement or document includes that agreement or document as amended at any time;

(i) the use of the word includes or including is not to be taken as limiting the meaning of the words preceding it;

(j) the expression at any time includes reference to past, present and future time and the performance of any action from time to time;

(k) an agreement, representation or warranty on the part of two or more persons binds them jointly and severally;

(l) an agreement, representation or warranty on the part of two or more persons is for the benefit of them jointly and severally;

(m) reference to an exhibit, annexure, attachment or schedule is a reference to the corresponding exhibit, annexure, attachment or schedule in this document;

(n) reference to a provision described, prefaced or qualified by the name, heading or caption of a clause, subclause, paragraph, schedule, item, annexure, exhibit or attachment in this document means a cross reference to that clause, subclause, paragraph, schedule, item, annexure, exhibit or attachment;

(o) when a thing is required to be done or money required to be paid under this document on a day which is not a Business Day, the thing must be done and the money paid on the immediately following Business Day; and

(p) reference to a statute includes all regulations and amendments to that statute and any statute passed in substitution for that statute or incorporating any of its provisions to the extent that they are incorporated.

(22)

Schedule 1 – Location Plan

(23)
(24)

Schedule 2 – Monetary Contributions

Contribution Public Purpose Timing of Payment Amount of payment

Dwelling Contribution Funding of local public infrastructure within the vicinity of the Land

Prior to the issue of a Construction

Certificate with respect to the relevant Dwelling.

$21,000.00 for every 1 bedroom Dwelling.

$23,000.00 for every 2 bedroom Dwelling.

$31,000.00 for every 3 or more bedroom Dwelling.

(25)

Schedule 3 – Easement Plan

(26)

Execution Page

Executed as an agreement

The common seal of The Hills Shire Council was affixed under a resolution passed by council

on ………..

in the presence of:

___________________________________

General Manager

___________________________________

Print Name

___________________________________

Witness

___________________________________

Print Name

___________________________________

Mayor

___________________________________

Print Name

Executed by the Developer in accordance with s127 of the Corporations Act 2001 (Cth):

____________________________________

Secretary/Director

____________________________________

Print name

___________________________________

Director

___________________________________

Print name

References

Related documents

RECOMMENDATION It is therefore recommended that the Tasman District Council does not amend the Venues Policy under the Gambling Act 2003 but calls for and considers public comment