Item 7.7 - Attachment 1
Draft Voluntary Planning Agreement
THIS PLANNING AGREEMENT is dated 2011
H.S.D (PARRA) PTY LTD (ABN 75 100 116 863) as trustee for The Hassall Street Unit Trust ABN 68 304 587 756, of 2/ 5-9 Hunter Street, Parramatta, in the State of New South Wales
PARRAMATTA CITY COUNCIL (ABN 49 9807 74 773) of 30 Darcy Street, Parramatta, in the said State
Council is the Consent Authority as defined in s.4 of the Environment Planning and
Assessment Act 1979 (NSW).
B. The Developer proposes to seek Planning Approval for the Proposed Modification to the approved mixed use Development from the Council, to enable the Developer to carry out the modified development on the Land.
C. The Developer has offered to enter into this Deed to make a Development Contribution if the Proposed Modification was granted.
IT IS AGREED:
1. DEFINITIONS AND INTERPRETATION
In this Deed, unless the context clearly indicates otherwise:
Act means the Environment Planning and Assessment Act 1979 (NSW);
Authority means a planning authority as defined by section 93C of the Act.
Business Day means any day that is not Saturday, Sunday, gazetted public holiday or bank holiday in Sydney, and concludes at 5 pm on that day;
Defect means a defect arising from materials or workmanship or design other than:
(a) minor shrinkage;
(b) minor settlement cracks; or
(c) normal wear and tear.
Defects Liability Period means the period of 12 months from the date on which the Developer’s development of the Unit is complete and a final occupation certificate has been issued;
Development means the mixed use development involving demolition and the construction of improvements comprising two towers of residential units and multi level basement parking authorised by Development Consent DA/848/2008 and DA/848/2008/A as modified or varied from time to time.
Development Contribution means the Contribution provided for in clause 4 herein;
Explanatory Note means the explanatory note required by the Regulation;
General Register of Deeds means the Land register maintained under the Conveyancing Act 1919 (NSW) and so titled;
GST means any form of goods and services tax payable under the GST Legislation;
GST Legislation means the A New Tax System (Goods and Services Tax) Act 1999 (Cth);
Indicative Plans means the plans at Schedule A of this Deed relating to the Proposed Modification;
Land means 9 Hassall Street, Parramatta, more particularly known as Lot 6 in Section 2 in Deposited Plan 241 and Lot 14 in Deposited Plan 11507 which forms part of Auto Consol 3753-97 folio identifier auto consol 3753-97;
Occupation Certificate has the same meaning as the Act.
Planning Approval means:
(a) a development consent as defined under section 4 of the Act; or
(b) a project approval granted under section 75J of the Act,
in relation to the Proposed Modification over all or part of the Land.
Proposed Modification means the proposed modification and modification to approved mixed use development for the Land generally in accordance with the Indicative Plan including but not limited to insertion of two new floors of residential units;
Public Benefit means either a cash contribution OR a dedication of land, as described in clause 4;
Real Property Act means the Real Property Act 1900 (NSW);
Register means the Torrens title register maintained under the Real Property Act;
Regulation means the Environmental Planning and Assessment Regulation 2000 (NSW
The Unit means Unit 16, Tower A, 9 Hassall Street, Parramatta, in the State of New South Wales, (“the Unit”) being a one bedroom apartment, with one car space and one storage area located on Basement Level 2. The agreed finishes to the Unit are included at Schedule 1 to this agreement. For configuration, plans and specifications, refer to Schedule 2 of this agreement
In the interpretation of this Deed, the following provisions apply unless the context otherwise requires:
(a) headings are inserted for convenience only and do not affect the interpretation of
(b) a reference in this Deed to a business day means a day other than a Saturday or Sunday on which banks are open for business generally in Sydney;
(c) If the day on which any act, matter or thing is to be done under this Deed is not a business day, the act, matter or thing must be done on the next business day;
a reference in this Deed to dollars means
Australian dollars and all amounts payable under this Deed are payable in
(e) a reference in this Deed to any law, legislation or legislative provision includes any statutory modification, amendment or re-enactment and any subordinate legislation or regulations issued under that legislation or legislative provision;
(f) a reference in this Deed to any agreement, deed or document is to that agreement, deed or document as amended, novated, supplemented or replaced;
(g) a reference to a clause, part, schedule or attachment is a reference to a clause, part, schedule or attachment of or to this Deed;
(h) an expression importing a natural person includes any company, trust, partnership, joint venture, association, body corporate or government agency;
(i) where a word or phrase is given a defined
meaning, another part of speech or other grammatical form in respect of that word
or phrase has a corresponding meaning;
(j) a word which denotes the singular denotes the plural, a word which denotes the plural denotes the singular, and a reference to any gender denotes the other genders;
(k) references to the word ‘include’ or ‘including’
are to be construed without limitation;
(l) a reference to a right or obligation of a party is a reference to a right or obligation of
that party under this Deed;
(m) a reference to a party to this Deed includes a reference to the servants, agents and contractors of the party, and the party’s successors and assigns;
(n) any schedule and attachment forms part of this Deed;
(x) neither this Deed nor any part of it is to be construed against a party on the basis
that the party or its lawyers were responsible for its drafting.
2. OPERATION AND APPLICATION OF THIS DEED
The parties agree that this Deed is a planning agreement governed by Subdivision 2 of Division 6 of Part 4 of the Act.
parties agree that this planning agreement takes effect on signature of this
planning agreement by the parties to it.
Deed is terminated when the Developer provides the total of the Development
Contribution required by this Deed to the Council.
This Deed applies to the Land, the Development and the Proposed Modification.
If applicable, each party will sign all documents and do all things reasonably necessary to procure the removal of this planning agreement as an encumbrance on the Register by appropriate notification or request if the Development Consent:
(a) lapses by effluxion of time; or
(b) is surrendered.
3. APPLICATION OF SECTION 94, SECTION 94A AND
SECTION 94EF OF THE ACT
Section 94, 94A and 94EF of the Act apply to the Development.
Despite any provision in the Act to the contrary, the parties agree that any contribution pursuant to s.94, s.94A and/or s.94EF of the Act and determined by the Council to be payable by the Developer in respect of the Proposed Modification is taken to be included in the Development Contribution as set out in clause 4 herein and the Council shall make no claim for any further amount to be paid by the Developer in relation to the Proposed Modification pursuant to s. 94, s.94A and/or s.94EF of the Act to the Council.
4. DEVELOPMENT CONTRIBUTION
4.1 The Developer will, at no cost to the Council, do all things necessary to deliver to Council, the Public Benefit, which will take the form of either a Unit or a cash contribution, in the Developer’s absolute discretion. The Developer will make the decision as to the form of the Public Benefit (either the Unit or a cash contribution) prior to the release of the Construction Certificate.
4.2 If the Developer decides, in its absolute discretion, to provide to Council the Public Benefit in the form of a cash contribution, then the following will apply:
(i) Amount: The amount of the cash contribution is three hundred thousand ($300,000);
(ii) Time for payment: The Developer will make the payment prior to the issuance of the Construction Certificate. In the event the cash
contribution is not made prior to the issuance of the
Construction Certificate, then the Public Benefit will take the form of the Unit and will be delivered to the Council in accordance with clause 4.3(vii below).
(iii) The Developer will pay the amount specified at clause 4.2(i) indexed quarterly in accordance with movements in the Consumer Price Index (All Groups Index) for Sydney issued by the Australian Statistician.
4.3 If the Developer decides, in its absolute discretion, to provide to Council the Public Benefit in the form of the Unit, then the following will apply:
(i) The Developer must do (or procure to be done) all things required to dedicate the Unit to the Council (including, strata subdivision and transfer of ownership in fee simple) on or before the date of issue of a Final Occupation Certificate in respect of the Unit.
(ii) The Developer must comply with any reasonable directions given by the Council in respect of the dedication of the Unit to the Council, however the decision of whether to provide the Council with the Public Benefit in the form of a cash contribution or the Unit will always rest solely with the Developer.
(iii)The Unit will be Unit 16, Tower A, 9 Hassall Street, Parramatta, in the State of New South Wales, (“the Unit”) being a one bedroom apartment, with one car space and one storage area located on Basement Level 2. For configuration, plans and specifications, refer to Schedule 2 of this agreement. The agreed finishes to the Unit are included at Schedule 1 to this agreement. In addition to the finishes particularised at Schedule 1 to this agreement, the Developer will ensure that a new refrigerator (with freezer compartment), a washing machine and a clothes dryer, are fully supplied and installed in the Unit, and further, that:
1. the washing machine will have a minimum rating of 3 stars for water use efficiency
(Water Efficiency Liability and Standards) and a minimum of 4 star energy rating label (old green based label);
2. the fridge/freezer will have a minimum 4 star (new white based label from 2010) or 6 star (under the old green based label) energy label; and
3. the clothes dryer will have a minimum 4 star energy label (old green based label) .
(iv) The Developer must, at its own cost, obtain all approvals and consents from any relevant governmental agencies having jurisdiction over or in respect of the Unit.
(v) The Developer must at its own cost:
a. carry out and complete the development of the Unit in accordance with all approvals and consents relating to the Unit issued by any relevant governmental agencies having jurisdiction over or in respect of the Unit;
b. ensure that the development of the Unit is conducted in a proper and workmanlike manner so that the Unit is structurally sound, fit for purpose and suitable for its intended use; and
c. promptly notify the Council of any delays which it experiences in completing the development of the Unit.
(vi) If the Council notifies the Developer of a Defect in the Unit within the Defects Liability Period, the Developer must remedy that Defect to the Council’s satisfaction, within a reasonable period of time as allowed by the Council.
(vii) The Developer will transfer the Unit to the Council in fee simple within 14 business days of the Strata Plan registration. If the transfer does not occur at this time, then Developer, in addition to the transfer of the Unit, will pay to the Council interest calculated on an amount of $300,000 at a rate of 8% per annum calculated daily for each day that the transfer is delayed.
(viii) The Developer will not alter or amend the location, configuration or specifications of the Unit, without first obtaining the Council’s approval.
5. REGISTRATION ON TITLE
5.1 Land Ownership
The Developer represents and warrants that it is the registered proprietor of the Land.
5.2 Registration of Deed
This Deed is to be registered as provided for in s. 93H of the Act. In this regard, the Developer will, at its own cost, take all practical steps and otherwise do anything to procure and ensure that this Deed is registered under the Real Property Act in the relevant folio of the Register no later than 20 days after the date that all parties have executed this agreement and the consent of any mortgagee has been obtained, and will deliver a title search to the Council confirming registration of this planning agreement.
5.3 Release and discharge of deed
The Council agrees, at the expense of the Developer, to do all things and sign all documentation reasonably required by the Developer to release and discharge this Deed with respect to any part of the Land upon the Developer satisfying all of its obligations under this Deed in respect of that part of Land.
6. DISPUTE RESOLUTION
6.1 Not commence
A party must not commence any court proceedings relating to a dispute unless it
complies with this clause 6.
6.2 Written notice of dispute
A party claiming that a dispute has arisen under or in relation to this Deed must give
written notice to the other party specifying the nature of the dispute.
6.3 Attempt to resolve
On receipt of the notice under clause 6.2, the parties must endeavour in good faith
to resolve the dispute expeditiously using informal dispute resolution techniques
such as mediation, expert evaluation or other techniques agreed by them.
If the parties do not agree within 7 days of the receipt of notice under clause 6.2 (or
any further period agreed in writing by them) as to:
(a) the dispute resolution technique and procedures to be adopted;
(b) the timetable for all steps in those procedures; or
(c) the selection and compensation of the independent person required for
such technique; then
the parties must mediate the dispute in
accordance with the Mediation Rules of the Law
Society of NSW. The parties must request the President of the Law Society of NSW or the president’s nominee to
select the mediator and determine the mediator’s remuneration.
6.5 Court Proceedings
If the dispute is not resolved within 42 days after notice is given under clause 6.2
then any party which has complied with the provisions of this clause 6 may in
writing terminate any dispute resolution process undertaken under this clause and
may then commence court proceedings in relation to the dispute.
6.6 No prejudice
This clause 6 does not prejudice the right of a party to institute court proceedings
for urgent injunctive or declaratory relief in relation to any matter arising out of or
relating to this Deed.
Words used in this clause that are defined in the GST Legislation have the meaning
given in that legislation.
7.2 Consideration GST exclusive
Unless otherwise expressly stated, all prices or other sums payable or consideration to
be provided under this Deed are GST Exclusive.
7.4 Development Contribution
(a) In the event the Developer elects to meet the Development Contribution in the way described in clause 4.3, then the parties agree that the margin scheme will apply;
(b) In the event the Developer elects to meet the Development Contribution in the way described in clause 4.2, the Council will provide a tax invoice for the amount of the cash contribution.
7.5 In the event GST is calculated to be payable in relation to this Deed, each party shall be responsible to meet and pay the GST amount.
8.1 Pursuant to s.93H(3) of the Act, upon Registration, this Deed is binding on and
enforceable against the registered proprietor of the Land from time to time as through that registered proprietor was a party to this Deed.
The Developer may assign the rights or benefits of this Deed to any person or entity but must provide written notice to the Council of its intention to do so. No assignment of this planning agreement will take effect until such written notice has been provided to the Council.
9. WARRANTIES OF CAPACITY
9.1 General warranties
Each party warrants to each other party that:
(a) this Deed creates legal, valid and binding obligations, enforceable against the
relevant party in accordance with its terms.
10. GENERAL PROVISIONS
10.1 Entire Deed
This Deed constitutes the entire agreement between the parties regarding the matters
set out in it and supersedes any prior representations, understandings or
arrangements made between the parties, whether orally or in writing.
This Deed must not be varied except by a written document executed by all
A right created by the Deed cannot be waived except in writing signed by the party
entitled to that right. Delay by a party in exercising a right does not constitute a waiver
of that right, nor will a waiver (either wholly or in part) by a party of a right operates
as a subsequent waiver of the same right or if any other right of that party.
10.4 Time for doing acts
(i) the time for doing any act or thin required to be done; or
(ii) a notice period specified in this Deed
expires on a day other than a Business Day, the time for doing that act or thing
or the expiration of that notice period is extended until the following Business
(b) If any act or thing required to be done is done after 5 pm on the specified day,
is taken to have been done on the following Business Day.
10.5 Governing law and jurisdiction
(a) The laws applicable in New South Wales govern this Deed.
(b) The parties submit to the non-exclusive jurisdiction of the courts of New South
Wales and any courts competent to hear appeals from those courts.
If any clause or part of any clause is in any way unenforceable, invalid or illegal, it is to
be read down so as to be enforceable, valid and legal. If this is not possible, the clause
(or where possible, the offending part) is to be severed from this Deed without
affecting the enforceability, validity or legality of the remaining clauses (or parts of
those clauses) which will continue in full force and effect.
10.7 No merger
Any right or obligation of any party that is expressed to operate or have effect on or
after the completion, expiration or termination of this Deed for any reason, will not
merge on the occurrence of that event but will remain in full force and effect.
This Deed may be executed in any number of counterparts. All counterparts taken
together will constitute one instrument.
10.9 Relationship of parties
Unless otherwise stated:
(a) nothing in this Deed creates a joint venture, partnership, or the relationship of
principal and agent, or employee and employer between the parties; and
(b) no party has the authority to bind any other party by any representation,
declaration or admission, or to make any contract or commitment on behalf of
any other party or pledge any other party’s credit.
10.10 Good Faith
Each party must act in good faith towards all other parties and use its best endeavours
to comply with the spirit and intention of this Deed.
10.11 No fetter
Nothing in this Deed shall be construed as requiring Council to do anything that would
cause it to be a breach of any of its obligations at law and without limitation, nothing
shall be construed as limiting or fettering in any way the exercise of any statutory
discretion or duty.
10.12 Explanatory Note
The Explanatory Note must not be used to assist in construing this Deed.
10.13 Expense and stamp duty
The Developer will pay its own legal costs and disbursements in connection with the
negotiation, preparation, execution and carrying into effect of, this Deed.
Any notice, demand, consent, approval, request or other communication (notice) to
be given under this Deed must be in writing and must be given to the recipient at its
Address for Service by being:
(a) Hand delivered;
(b) sent by facsimile transmission;
(c) mail sent by prepaid ordinary mail within Australia; or
(d) sent by prepaid Express Post International airmail to the Address for Service of
the recipient party, if the Address for Services of the sender and the recipient
are in difference countries.
A notice is given if:
(e) hand delivered, on the date of delivery;
(f) sent by facsimile transmission during any Business Day, on the date that the
sending party’s facsimile machine records that the facsimile has been
(g) mail sent by prepaid ordinary mail within Australia, on the date that is 2 Business Days after the date of posting; or
(h) Sent by prepaid Express Post International airmail between countries, on the
date that is 10 Business Days after the date of posting.
EXECUTED AS A DEED
EXECUTED by H.S.D (PARRA) PTY LTD )
ABN 75 100 116 863 in accordance with s. 127
the Corporation Act 2001: )
Signature of Director Signature of Director/Secretary
Name of Director Name of Director/Secretary
EXECUTED for and on behalf of )
PARRAMATTA CITY COUNCIL by )
who hereby declares that they have been )
duly authorised to do so, in the presence of: )
Signature of witness Signature of authorised representative
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