Item 7.7 - Attachment
1 |
Draft Voluntary Planning Agreement |
THIS PLANNING AGREEMENT is dated 2011
PARTIES:
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
(Developer)
PARRAMATTA CITY COUNCIL (ABN 49 9807 74 773) of 30 Darcy Street,
Parramatta, in the said State
(Council)
INTRODUCTION
A. The
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
1.1 DEFINITIONS
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
1.2 Interpretation
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
this
Deed;
(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;
(d)
a reference in this Deed to dollars means
Australian dollars and all amounts payable under this Deed are payable in
Australian dollars;
(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.
The
parties agree that this planning agreement takes effect on signature of this
planning agreement by the parties to it.
This
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.
6.4 Mediation
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.
7. GST
7.1 Definitions
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. ASSIGNMENT
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.
8.2 Consent
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.
10.2 Variation
This
Deed must not be varied except by a written document executed by all
parties.
10.3 Waiver
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
(a)
If:
(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
Day.
(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.
10.6 Severance
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.
10.8 Counterparts
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.
10.14 Notices
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
successfully
transmitted;
(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
of )
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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