ATTACHMENT E 471/2017/DA - 73 LOT - LARGE LOT RESIDENTIAL SUBDIVISION, BRIMBIN - PLANNING & NATURAL SYSTEMS - MidCoast Council
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PLANNING & NATURAL SYSTEMS
ATTACHMENT E
471/2017/DA - 73 LOT - LARGE LOT
RESIDENTIAL SUBDIVISION, BRIMBIN
ORDINARY MEETING
26 SEPTEMBER 2018
TRIM Record No 17/27109
Removed o n 25/05/2017 17.27.43 Page 1
THIS PLANNING AGREEMENT made on
BETWEEN
Parties
MINISTER FOR THE ENVIRONMENT ABN 30 841 387 271 as Minister Administering the National Parks and
Wildlife Act 1974 (NSW) of Level 32, Governor Macquarie Tower, 1 Ferrer Place, Sydney, New South Wales,
2000 (Minister)
AND GREATER TAREE CITY COUNCIL of 2 Pulteney Street, Taree, New South Wales, 2430 (Council)
AND ROCHE GROUP PTY LIMITED ACN 000 606 682 of 365 New South Head Road, Double Bay New
South Wales 2028 (Landowner)
Background
A The Landowner owns the Land.
ts: The Landowner has sought an amendment to the GTLEP 2010 to rezone the Land, from the Present
Zones to the Proposed Zones in order to allow the Proposed Development on the Development Land.
C. The Landowner intends thereafter to lodge with the Council a Development Application(s) for the
Proposed Development on the Development Land.
D. The Landowner has offered to dedicate the Biodiversity Offset 1 Land and make the Environmental
Contribution to the Minister in order to offset losses in biodiversity likely to be occasioned by the rezoning
of the Proposed Development in the event that the amendment to the GTLEP 2010 is made.
E. The Council intends to submit an application for Biodiversity Certification in relation to the Biodiversity
Certification Land to the Minister for consideration under Part 7AA of the Threatened Species
Conservation Act 1995. The transfer of the Biodiversity Offset 1 Land - Brimbln to the Minister forms a
conservation measure under this application.
The Landowner will transfer the Biodiversity Offset 2 Land to the Minister as required under condition IC
of development consent for DA/113/2011 — West Wallsend issued by Lake Macquarie City Council on 27
December 2012 (and as amended from time to time) and Concurrence Conditions included at
Attachment A to the development consent (and as amended from time to time) issued by the Office of
Environment and Heritage on 4 July 2012.
G. The parties have agreedto enter into this Agreement to give effect to the above.
Operative Provisions
1. DEFINITIONS AND INTERPRETATION
1.1. In this Agreement, unless the context requires otherwise the following definitions apply:
Agreement means this planning agreement.
TRIM Record No 17/27109 Bank Guarantee means an unconditional and irrevocable undertaking issued by a major Australian trading bank in favour of the Minister and which either does not have an expiry date or has an expiry date of at least 13 months after its date, and is otherwise in form and substance acceptable to the Minister, to pay on demand to the Minister the amount therein expressed in Australian currency. Biodiversity Certification means biodiversity certification conferred by the Minister on specified land by order published in the Gazette under Part 7AA of the Threatened Species Conservation Act 1995. Biodiversity Certification Land means the Development Land. Biodiversity Offset Land means Biodiversity Offset 1 Land and Biodiversity Offset 2 Land. Biodiversity Offset 'I Land is the land described in Table 1 of Schedule 2 as shown on Plan C as an offset for the proposed development at Brimbin. Blodiversity Offset 2 Land means the land required to be transferred to the Minister in accordance with condition 1C of the development consent for DA/113/2011 at West Wallsend issued by Lake Macquarie City Council on 27 November 2012 (and as amended from time to time) and Concurrence Conditions included at Attachment A to the development consent (and as amended from time to time) issued by the Office of Environment and Heritage on 4 July 2012 and as described in Table 2 of Schedule 2 and shown on Plan D. Dealing, in relation to the Land, means, without limitation, a sale, transfer, assignment, mortgage, charge, encumbrance or other dealing with the Land or any part thereof. Dedication means dedication of the Biodiversity Offset Land pursuant to Clause 5 and includes the Transfer thereof. Degrade means to alter the Biodiversity Offset Land in a way which diminishes its ecolog' value. Development Application means an application made or to be made under Part 4 of the EP&A Act by or on behalf of the Landowner. Development Consent has the same meaning as in the EP&A Act. Development Land is the land described in Table 3 of Schedule 2 as shown on Plan C. DLEP means the amendment proposed to be made to the GTLEP 2010 by the Gazeftal so that the Land is rezoned from the Present Zones to the Proposed Zones. Environmental Contribution means the development contribution described at clause 4(a) of Schedule 3. EP&A Act or Act means the Environmental Planning and Assessment Act 1979 (NSW).
TRIM Record No 17/27109
Recieved on 25/05/2017 17-2743 Page 3
Explanatory Note means the explanatory note required by the Environmental Planning and
Assessment Regulation 2000 (NSW).
Gazettal means the publication on the NSW legislation website under section 34(5) of the EP&A
• . .
Act.of the .making by the Minister administering the EP&A Act of the amendment to the GTLEP
2010 substantially as described in the DLEP.
GTLEP 2010 means .the Greater Three Local Environmental Plan 2010.
GST has the same meaning as in the GST Law.
GST Act means the A New Tax System (Goods and Services Tax) Act 1999 (UN.
GST Law has the meaning given to that term in A New Tax System (Goods and Services Tax) Act
1999 (Cth) and any other Act or regulation relating to the imposition or administration of the GST.
Land means the Development Land and Biodiversity Offset Land.
Master Plan means a plan, approved by Council that sets out the detail of the Proposed
Development including the precise location of boundary roads and infrastructure easements.
Minister means Minister administering the National Parks and Wildlife Act 1974.
Order means a court order, including an injunction, or order, notice or direction of any government
authority.
Plan A means the plan annexed to this Agreement and marked "A".
Plan B means the plan annexed to this Agreement and marked "B".
Plan C means the plan annexed to this Agreement and marked "C".
Plan D means the plan annexed to this Agreement and marked "0".
Plan E means the plan annexed to this Agreement and marked "E".
Plan of Management means a plan of management adopted by the Minister under s73B of the
National Parks and Wildlife Act 1974.
Present Zones means the present zoning of the Land as shown in Plan A.
Proposed Development means the proposed development of the Development Land at Brimbin
as generally described in Plan E (The Structure Plan).
Proposed Zones Means the proposed zoning of the Land as shown in Plan B.
Provision means doing and carrying out of those things by the Landowner described in Schedule
3.
Registrable Form means the document is properly executed and witnessed, bears an imprint
from the Office of State Revenue to the effect that all necessary duties have been paid, and is
otherwise capable .of immediate registration by the Registrar-General on the title of the relevant
piece or parcel of land.
TRIM Record No 17/27109
Recieved on 25/05/201 / 1 L 1 / 4 3 Page 4
Real Property Act means Real Property Act 1900 (NSW).
Registrar-General means the Registrar-General, under the Real Property Act.
Statement of Interim Management Intent means a "Statement of Interim Management Intent"
policy document prepared by the National Parks and Wildlife Service to guide interim management
of recently acquired lands prior to the adoption of a Plan of Management.
Statement of Works means the works, timeframes and costs identified in the "Scope of Work for
Land Acquisition at Brimbin (version 00.04)" 'prepared by the National Parks and Wildlife Service
and approved on 14 August 2014 (Robert Quirk).
Transfer means a transfer in the approved form under the Real Property Act which is duly
stamped, signed and otherwise in Registrable Form for the purpose of transferring the Biodiversity
Offset Land to the Minister.
1.2. In the interpretation of this Agreement, the following provisions apply unless the context otherwise
requires:
(a) Headings are inserted for convenience only and do not affect the interpretation of Ls
Agreement.
(b) A reference in this Agreement 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 Agreement is not a
' business day, the act, matter or thing must be done on the next business day.
(d) A reference in this Agreement to dollars or $ means Australian dollars and all amounts
payable under this Agreement are payable in Australian dollars.
(e) A reference in this Agreement 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 Agreement 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 Agreement.
(h) An expression importing a natural person includes any company, trust, partnership, joint
venture, association, body corporate or governmental 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.
xeclevea on G J I U J I L U 1
TRIM Record No 17/27109
1 G ra
(I) A reference to this Agreement includes the agreement recorded in this Agreement.
(m) A reference to a party to this Agreement includes a reference to the servants, 'agents and
contractors of the party, and the party's successors and assigns.
(n) Any schedules and attachments form part of this Agreement. ' •
(o) Any dimension given is approximate.
•
(p) No waiver of any breach of this Agreement or of .any of its terms will be effective unless the
waiver is in writing and signed by the party against whom the waiver is claimed, and no
waiver of any breach will operate as a waiver of any other breach or subsequent breach.
(q) In the interpretation of this agreement no rule of construction shall apply to disadvantage one
party on the basis that that party put forward the particular covenant, term or provision.
. „.,
2. Planning Agreement under the Act
The Parties agree that this Agreement Is a planning agreement governed by Subdivision 2 of Division 6 of
- Part 4 of the EP&A Act.
3. Application of this Agreement
This Agreement applies to:
3.1. the Lend; and
3.2. the DLEP.
4. Operation of this Agreement
.
4.1. Subject to clause 4.3, this Agreement is entered into and takes effect on its execution by all the
parties.
4.2. The requirement to Transfer the Biodiversity Offset Land in accordance with clause 5.1 of this
Agreement does not take effect until Biodiversity Certification has been conferred and the DLEP
has been subsequently made and gazetted
'4.3. This Agreement will terminate after:
(a) The Biodiversity Offset Land has been transferred In accordance with clause 5; and
(b) All instalments of the Environmental Contribution have been made in accordance with clause 4
of Schedule 3; and
(0) The Landowner has carried out or procured the carrying out of the works described in clause 3
of Schedule 3 in accordance with that clause; and
(d) The Minister has confirmed that the lands covered by any existing or future infrastructure
easements associated with the Biodiversity Offset Lands under a Master Plan or Structure
Plan have been transferred upon his request or are not required to be transferred.
TRIM Record No 17/27109
5. The Landowner's Obligations: the nature, extent, timing and manner by which the Provision is to
be made
5.1. The Landowner will make the Dedication to the Minister in accordance with clause 1 of Schedule 3
and the terms of this Agreement,
5.2. If, for any reason the Landowner does not Transfer the Biodiversity Offset Land in accordance with
clause 1 of the Schedule 3 the Minister may compulsorily acquire the Biodiversity Offset Land in
accordance with clause 2 of Schedule 3.
5.3. The Landowner will carry out or procure the carrying out of the works described in clause 3 of
Schedule 3 in accordance with that clause.
5.4. The Landowner will pay the Environmental Contribution to the Minister for the conservation and
management of the Biodiversity Offset Land in accordance with clause 4 of Schedule 3.
6. Acknowledgements
6.1. The Minister will consider, as soon as practicable after the registration of the Transfer, how
conservation of the Biodiversity Offset Land is most appropriately achieved, whether Li
reservation as national park, as a reserve of another category under the National Parks and
Wildlife Act 1974 (NSW), or by a combination of these or otherwise and make a recommendation
to the Governor-General, as determined in the Minister's absolute discretion, acting reasonably.
7. Assignment and other dealings
7.1. Dealings by Landowner
The Landowner must not assign, transfer, novate, dispose of, sell or otherwise deal with its right,
title or interest in the Development Land and the Biodiversity Offset Land or its rights or obligations
under this Agreement to another person (Transferee), unless before such assignment, transfer,
novation, disposal, sale or other dealing:
(a) the Landowner gives to Council and the Minister at least 20 Business Days prior natio(
writing of the proposed dealing;
(b) the Landowner satisfies Council and the Minister that the proposed Transferee:
(i) is the same for both the Development Land and the Biodiversity Offset Land and that
the transactions are interdependent; and
(ii) is respectable and financially capable of complying with such of the Landowner's
obligations under this Agreement as Council and the Minister nominates as required
to be adopted by the Transferee (Required Obligations);
(c) the Transferee signs a deed, in form and substance acceptable to Council and the Minister,
containing provisions under which the Transferee agrees to comply with the Required
Obligations as if it were the Landowner (including obligations which arose before the transfer
or assignment) under this Agreement;
TRIM Record No 17/27109
Recleved o n 25/05/201 / I / 2 i 4 3 Page!
(d) the Transferee gives any Bank Guarantee, bond .or guarantee and indemnity by a third
person or other security that Council and/or the Minister reasonably require;
(e) any default by the Landowner. has been remedied by the Landowner or waived by Council
and the Minister; and
(f) the Landowner and the Transferee pay Council's and the Minister's Costs in relation to that
dealing.
7.2. No part sale
The Landowner must not sell, transfer, licence or otherwise deal with its right, title or interest in
part only of the Development Land or the Biodiversity Offset Land, or just. one or the other of the
Development Land or the Biodiversity Offset Land, prior to the Dedication.
7.3. Release
If the Landowner sells, transfers or disposes of the whole of the Development Land and the
Biodiversity Offset Land prior to the Dedication and fully satisfies the requirements of clause 7.1,
,
the Landowner will be released from its Obligations under this Agreement with respect to the land
• • being sold, transferred or disposed of..
8. Ownership o f t h e Land and Registration o f this. Agreement Section 93H o f the Act
8.1. The Landowner represents and warrants to Council and the Minister that as at the date of this
• Agree lent; the Landowner is the legal and beneficial owner of the Land.
8.2_ The parties shall do all things reasonably necessary to enable the Landowner to obtain registration
of this Agreement under section 93H of the Act by the Registrar-General as'soon as possible: and
no later than 90 Business Days, after the date this Agreement has been executed by all parties,
such, that on registration of this Agreement, the -Registrar-General _wili,havp.made an entry in the
relevant Folio of the Register kept under the Real Property Act In relation to the Land.
• „8.3. The Landowner must:
--
(a) procure the consent of each person who has an estate or interest in the Development Land
or the Biodiversity _Offset Land registered under the Real Property Act or who is seized or
possessed of an estate or interest in the said land; and
(b) deliver to the Minister on the date this Agreement is made, in Registrable Form, all such
documents as are necessary to obtain such registration, together with the necessary fees for
registration.
8.4. If: the title documents for the Development Land or the Biodiversity Offset Land are in the
possession of another person then the Landowner must procure production of the title documents
or deliver to Council and the Minister a deed poll executed by that person that contains covenants
in favour of Council and the Minister to produce the title documents at the Land and Property
Information Section within the Office of Finance and Services, or other such place for registration,
as notified by Council or the Minister, when required by Council and the Minister and cause themTRIM Record No 17/27109
R e c l e v e d o n 27/0N2l11 /.4.5 rage D
to remain there until the Agreement is registered, and that the person will not otherwise part with
possession of the title deeds without the consent of Council and the Minister. Council and the
Minister shall do all things necessary to remove the Planning Agreement from the register when
the Landowner's obligations under this Agreement have been performed.
9. Variation o f this Agreement
Any amendment to this Agreement shall only be effective if in writing and signed by all parties and
registered under section 93H of the Act.
10. Dispute Resolution
10.1. if a dispute arises out of or relates to this Agreement, including any dispute as to breach or
termination of this agreement or as to any claim in tort, inequity or under any legislation, a party
cannot commence any court proceedings relating to the dispute unless that party has complied
with the following clauses except where that party seeks urgent interlocutory relief.
10.2. A party claiming that a dispute has arisen under or in relation to this Agreement must give written
notice to the other parties specifying the nature of the dispute.
10.3. On receipt of notice under clause 10.2 the parties must endeavour in good faith to resolve the
dispute expeditiously using informal dispute resolution techniques such as mediation, expert
evaluation or similar techniques agreed by them.
10.4. If the parties do not agree within 21 days of service of the notice, 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; and
(c) the selection and compensation of the independent person required for that technique.
the parties must mediate the dispute in accordance with the Mediation Rules of the Law Society of
New South Wales and must request the President of the Law Society of New South Wales or
President's nominee to select the mediator and determine the mediator's remuneration.
10.5. If the dispute is not resolved within 60 days after notice is given under clause 10.2 then any party
which has complied with the provisions of this clause 10 may in writing terminate any dispute
resolution process undertaken under this clause and may then commence court proceedings in
relation to the dispute.
10.6. The parties acknowledge the purpose of any exchange of information or documents or the making
of any offer of settlement under this clause 10 is to attempt to settle the dispute. No party may use
any information or documents obtained through any dispute resolution process undertaken under
this clause 10 for any purpose other than in an attempt to settle the dispute.
10.7. This clause 10 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 Agreement-Xemevea o n 2 D / U D / 2 . 1 ) 1
TRIM Record No 17/27109
/ 1 , _ L rage
6
11. Caveat
The Landowner will not object to the Minister lodging a caveat in the relevant folio of the Register for the
Biodiversity Offset Land nor will the Landowner take, or suffer to be taken, any steps to remove that caveat
until the Biodiversity Offset Land has been Dedicated to the Minister.
12. Application o f sections 94, 94A and 94EF o f the Act t o t h e Development.
The application of sections 94, 94A and 94EF of the Act are excluded to the extent stated in Schedule 1.
13. Notices
13.1. Any notice, consent, information, application or request that must or rnay be given or made to a
party under this Agreement is only given or made if it is in writing and sent in one of the following
ways:
(a) delivered or posted to that party at its address set out below.
(b) faxed to that party at its fax number set out below.
Minister
Attention: Mr Don Arnold
Senior Manager, North East Regional Operations • "
Office of Environment and Heritage
Address: Locked Bag 914, Coffs Harbour NSW 2450
Facsimile: (02) 6659 8257
Council •
Attention: -Mr. Richard Pamplip
sqr.or Planner, Greater Three City Council
Address: PO Box 482, Tares, NSW 2430
Facsimile: (02) 6592 5311
Landowner
Attention: Mr Wes van der Gardner
General Manager Development, Roche Group
-
Address: PO Box 325, Double Bay, New South Wales .1360
Facsimile: 02 9270 6090Keeley. o
TRIM Record No 17/27109
13.2. If one party gives to another party 3 business days' notice of a change of its address or fax
number, any notice, consent, Information, application or request is only given or made by that
other party if it is delivered, posted or faxed to the latest address or fax number.
13.3. Any notice, consent, information, application or request is to be treated as given or made at the
following time:
(a) if it is delivered, when it is left at the relevant address.
(b) if it is sent by post, 2 business days after It is posted.
(c) if it is sent by fax, as soon as the sender receives from the sender's fax machine a report of
an error free transmission to the correct fax number.
13.4. If any notice, consent, information, application or request is delivered, or an error free transmission
report in relation to it is received, on a day that is not a business day, or if on a business day, after
5pm on that day In the place of the party to whom it is sent, it is to be treated as having been given
or made at the beginning of the next business day.
14. Dealings
Until this Agreement is registered under section 93H of the Act, the Landowner shall not be a party to a
Dealing relating to the Development Land and/or Biodiversity Offset Land unless it is with, or in agreement
with, the Parties to this Agreement.
15. Costs
15.1. The Landowner agrees to pay the costs incurred by the Minister and Council in relation to the
negotiation, preparation, execution, advertising, stamping and registration of this Agreement,
including legal costs and expenses on a solicitor and own client basis.
15.2. The Landowner agrees to pay or reimburse the Minister and Council on demand for:
(a) costs of the Minister or Council in connection with any exercise or non-exercise of rights
(including in connection with the actual or contemplated enforcement or preservatioi
.
any rights under this Agreement) waiver, variation, release or discharge in connection
with this Agreement; and
(b) taxes and fees (including registration fees) and fines and penalties in respect of fees
which may be payable or determined to be payable in connection with this Agreement or
a payment or receipt or any transaction contemplated by this Agreement, including in
each case legal costs and expenses on a solicitor and own client basis.
15.3. Provided that the costs, taxes, fees, fines and penalties for either party referred to in (a) and (b)
above do not exceed a total of $10,000 (Ten thousand dollars) plus GST per party.TRIM Record No 17/27109
Recleved o n 25/05/2017 17.2743 Page 11
16. Entire Agreement
.•
This Agreement 'Contains everything to which the parties have agreed in relation to the matters it deals
with. No party can rely on an earlier document, or anything said or done. by another party, or by a director,
officer, agent or employee of that party, before this Agreement was executed.
.
17. Further acts
Each party must promptly execute all documents and do all things that another party from time to time
reasonably requests to affect, perfect or complete this Agreement and all transactions incidental to it.
18. Governing law and jurisdiction -
This Agreement is governed by the law of New South Wales. The parties submit to the non-exclusive
jurisdiction of its courts and courts of appeal from them.. The parties will not object to the exercise of
jurisdiction by those courts on any basis.
•
19. Joint and individual liability and benefits
Except as otherwise set out in this Agreement, any agreement, covenant, representation or warranty under
this Agreement by 2 or more persons binds them jointly and each of them individually, and any benefit in
favour of 2 or more persons is for the benefit of them jointly and each of them individually.
20. No fetter
Nothing in this Agreement shall be construed as requiring the Minister or the Council to do anything that
would cause • it to be in 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.
21. Representations and warranties
The parties represent and warrant that they have power to enter Into this Agreement and comply with their
obligations under the Agreement and that entry into this Agreement will not result in the breach of any law.
22. Severability
22.1. If a clause or part of a clause of this Agreement 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.
22.2. 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 Agreement, but the rest of this Agreement is not affected.
23. Waiver
23.1. The fact that a party fails to do, or delays in doing, something the party is entitled to do under this
Agreement, does not amount to a waiver of any obligation of, or breach of obligation by, another
party.
23.2. A waiver by a party is only effective if it is in writing.Reclevea o n 1J/U3;LUI
_ TRIM Record No 17/27109
23.3. A written waiver by a party is only effective in relation to the particular obligation or breach ,in
respect of which it is given. It is not to be taken as an implied waiver of any other obligation or
breach or as an implied waiver of that obligation or breach in relation to any other occasion.
24. Release and Indemnity
24.1. The Landowner agrees that the obligation to provide the Provision is at the risk of the Landowner.
The Landowner releases Council and the Minister from any claim, liability or loss arising from, and •
costs incurred in connection with, the Landowner's obligation to provide the Provision.
24.2. The Landowner indemnifies Council and the Minister against any costs incurred in connection with
Council or the Minister enforcing the Landowner's obligation to provide the Provision in
accordance with this Agreement, except to the extent caused or contributed to by Council's or the
Minister's negligent act or default under this Agreement.
24.3. The indemnity in clause 24.2 is a continuing obligation, independent of the Landowner's other
obligations under this Agreement and continues after this Agreement ends.
25. Explanatory Note
The Explanatory Note shall not be used to assist in construing this Agreement.
26. GST
26.1. Interpretation
(a) Except where the context suggests otherwise, terms used in this clause 26 have the
meanings given to those terms by the GST Act (as amended from time to time);
(b) any part of a supply that is treated as a separate supply for GST purposes (including
attributing GST payable to tax periods) will be treated as a separate supply for the purposes
of this clause 26; and
(c) a reference to something done (including a supply made) by a party includes a reference to
something done by any entity through which that party acts.
26.2. Intention of the parties
Without limiting the operation of this clause 26, the parties intend that:
(a) divisions 81 and 82 of the GST Act apply to the supplies made under and in respect of this
Agreement;
(b) no tax invoices will be exchanged between the parties other than those relating to the
payment of fees under Clause 15 of this Agreement; and
(c) no additional amounts will be payable on account of GST.
26.3, Reimbursements
Any payment or reimbursement required to be made under this Agreement that is calculated by
reference to a cost, expense, or other amount paid or incurred will be limited to the total cost,TRIM Record No 17/27109
Reeleved o n 25/05/201 / 1 /.2 / A 3 P a g e 13
expense or amount less the amount of any input tax credit to which any entity is entitled for the
acquisition to,whioh the cost, expense or amount relates.
26.4. Consideration GST exclusive
Unless otherwise expressly stated, all prices or other sums, payable or consideration to be provided
. „ . .
under this Agreement are GST Exclusive. Any consideration that is specified to be inclusive of
GST must not be taken into account in calculating the GST payable in relation to a supply for the
purposes of this clause 26.
26.5. . • ..for GST
Additional amounts
Subject to clause 26.7, if GST becomes payable on any supply made by a party ("Supplier") under
or in connection with this Agreement:
(a) any party ("Recipient") that is required to provide consideration to the Supplier for that supply •
must pay an additional amount to the Supplier equal to the amount of GST payable on that
supply ("GST Amount"), and:
(b) where that GST Amount is payable by Council or the Minister, the GST Amount will be
limited to the amount of the input tax credit (if any) to which the Council or the Minister (or the
representative member of any GST group of which the is a member) is entitled in relation to
. . and is payable within„ 5 Business Days
the Council's / Minister's acquisition of that supply
after Council or the Minister (or the representative member of any GST group of which the is
a member) has received the benefit of that input tax credit; and
(c) in any other case, the GST Amount is payable at the same time as any other consideration is
to be first provided for that supply; and
(d) the Supplier must provide a tax invoice to the Recipient for that supply, no later than the time
at which the GST Amount for that supply is to be paid in accordance with clause
26.6. Variation
(a) If the GST Amount properly payable in relation to a supply (as determined in accordance with
clause 26.6 and clause 26.7, varies from the additional amount paid by the Recipient under
clause 26.5, then the Supplier will provide a corresponding refund or credit to, or will be
entitled to receive the amount of that variation from, the Recipient. Any payment, credit or
refund under this clause 26.6(a) is deemed to be a payment, credit or refund of the GST
Amount payable under clause
(b) The Supplier must issue an adjustment note to the Recipient in respect of any adjustment
event occurring in relation to a supply made under or in connection with this Agreement as
soon as reasonably practicable after the Supplier becomes aware of the adjustment event.TRIM Record No 17/27109
Reeleved o n 2 5 / 0 / 2 0 1 7 1 7 . 2 / 4 3 Page 14
26.7. Exchange of non-monetary consideration
(a) To the extent that the consideration provided for the Supplier's taxable supply to which
clause 26.5 applies is a taxable supply made by the Recipient (the "Recipient Supply"), the
GST Amount that would be otherwise be payable by the Recipient to the Supplier in
accordance with clause 26.5 shall:
(i) if the Supplier is Council or the Minister, be reduced by the amount of the input tax
credit (if any) to which Council or the Minister (or the representative member of any
-GST group of which the Council or Minister, in any capacity, is a member) is entitled
in relation to Council's or the Minister's acquisition of the Recipient Supply; and
(ii) in any other case, be reduced by the amount of GST payable by the Recipient on the
Recipient Supply.
(b) The Recipient must issue to the Supplier an invoice for any Recipient Supply on or before the
time at which the Recipient must pay the GST Amount in accordance with clause 26.5 (or the
time at which such GST Amount would have been payable in accordance with clause 2P-5
but for the operation of clause 26.7(a).
26.8. No merger
This clause will not merge on completion or termination of this Agreement.TRIM Record No 17/27109
Reeleved o n 25/05/2017 17.2743 Page 15
SCHEDULE 1 - SECTION 93F REQUIREMENTS '
SUBJECT and SUB-SECTION OF THE ACT THE PLANNING AGREEMENT
Planning instrument and/or Development. . ,
Application - (Section 93F(1))
The Landowner has; •:,:•, :,-,-, ,• : ',:.• •• - • - -c "... ' .. ' *. ."- ' ...:: :. ' ' .̀ '
-,:: ::,
(a) sought a change to an environmental • .' •. ( a ) : • e ' I' '. .• ...., ' ' ' ! • '..:
planning instrument
• . . ,- ‘ . ,,
,. .
(b) made, or proposes to make a (b) ''' Yes •
Development Application.
.
(c) entered into an agreement with, or is (c) No :•.:
otherwise associated with, a person, to
whom paragraph (a) or (b) applies.
•
Description of the land to which the
The Land ;
Planning Agreetinentapplies -(Section
93F(3)(a)) - •
Description o f change to. the environmental The DLEP.
•
planning instrument tá which the Planning
P-areement applies - (Section 93F(3)(b))
1. 1
(.
The scope, timing and manner of delivery . \iee Schedule 3 ,
of contribution required by the Planning ,
: : ' .
Agreement ,-;(etion 93F(3Xc)) • ' :. '
Applicability of eectiotk 94 of the Act 7 : " :; T I . 1 9 P ppliC,aticn.
of section /94 of .the Act is not
(Section 93F(3)(d))
,
' excluded. '
• .
Applicability Of section 94A.. of the AO, 7, The application of section 94A of the Act is not
(Section 93F(3)(d)) — , 'excluded.
-
'
• s. . " :•
Applicability of section 94EF of the Act - The application of section 94EF of the Act is
(Section 93F(3)(d)) not excluded.
' -
Consideration of benefits under this N/A
Agreement if section 94 applies (Section '' • :' :
93F(3)(e))
Mechanism for d,ispute resolution 7 (Section See clause 10.
_9:2(3)(f)) „
S S'
L iorcement of the Planning Agreement - See clause 11 - caveat in offset register.
(Section 93F(3)(g)) clause 1(n) of Schedule 3 - bank
guarantee.,
clause 2 of Schedule 3 - accitilsItion
and compensation. •
Registration Of the Planning Agreement.. -%':The P..ekt*. egree:th6theiPlaniliti.g
(Section 93F(3)(g)) : '.:..,Y' ,'':11:::::::';','. ':': ....:;:: ' " Agreement will be registered In accordance '
with clause El.
. , • '
No obligation to grant consent or exercise NO obligation. See clause 20.
functions - (Section :93F(9))TRIM Record No 17/27109
R e c l e v e d o n .2./UNZUI 1 /.2. _ r a g e io
SCHEDULE 2 THE LAND
Table 1 — Biodiversity Offset 1 Land — Brirnbin (Plan C).
Registered Proprietor: Roche Group Pty.Ltd.
Part Lot 1 DP78136 Balance of Lot excluding:
- offset shown in Table 2.
- existing 50m Transgrid easement.
- optional 20m easement east of existing Transgrid easement.
- notional boundary adjustment as shown.
- Crown Road to Dawson River,
- internal Crown and Council roads to be included later.
Part Lot 13 DP114564 Balance of Lot excluding offset shown in Table 2.
Part Lot 6 DP10304 Excludes development land to the north and east of the notional
boundary adjustment as shown.
Part Lot 149 DP754449 Excludes development land to south and optional 20m
infrastructure easement to west of railway.
Part Lot 152 DP754449 Excludes development land to south.
Lot 154 DP754449 Excludes Internal Crown and Council roads to be included later.
Lot 155 DP754449 Excludes optional 20m infrastructure easement to west of railway.
Lot 1 DP1084305 Excludes internal Crown and Council roads to be included later
and optional 20m infrastructure easement to west of railway.
Part Lot 1 DP 530846 Excludes development land to the north and 20m exclusion for
future road in north east.
Part Lot 2 DP530846 Excludes 20m exclusion for future road in north west.
.
Various Various Any additional lands lying between the offset land and any
boundary roads surrounding the proposed development zoned R1
as agreed once the location of these roads is known following
' subdivision.
Table 2— Biodlversity Offset 2 Land — West Wallsend (Plan D).
Registered Proprietor: Roche Group Pty. Ltd.
Part Lot 1 DP78136 As identified in Lake Macquarie City Council DA 113/2011 and
OEH Concurrence Conditions but excluding Crown and Council
roads to be included later.
Part Lot 13 DP114564 As identified in Lake Macquarie City Council DA 113/2011 and
OEH Concurrence Conditions but excluding Crown and Council
roads to be included later.TRIM Record No 17/27109
Recieved o n 25/05/2017 1 7 2 7 4 3 Page 17
Table 3 — Development Land (Plan C).
Registered Proprietor: Roche Group Ltd
.
„
ap: .0.
Lots 63, 140 DP754410
.
. .
Lots 1, 3, 4, 7, 10, DPI 0304
12, 13, 14
Part Lot 6 DPI 0304 Balance of Lot excluded in Table t
,
Lots 1, 2 DP1084130
Lots 4, 5, 7, 27 pp60$..1 •
Lot. 18 p P41 4@
. ,
Lot 81 DP848750
.
..
Pnrt Lots 149, 152 DP754449 BeleriPP.Pf Lots excluded in Table 1.
iot.1 . •'*.:' DP*174722 . .. ,
. , .
Lots 1, 2, 3, 28 DP14182
Part Lots. 1 and 2 DF!580.846 Balance of Lots excluded in Table 1.
.:
Lot 1 ,pP314748
„., : „ ,
Lot 8 Pf60.76.26.,
. .
Lot 9 DP664296
Lots.87747, 111 pF75,44
„.,
-
.,
1 I .
. . .
7
, :-.
Lot 122. Pp882912
.. .
Lots 23, 24 0P142474
_4
LV t 1 DP170558
Lot 1 DP965109
•
Note: These lots are those generally identified a s Zones R1, R5, 134, 1N1, RU4, SP2 and E4 on Plan 13 but exclude
the E2 wildlife corridor along the railway line that is proposed for replanting.
,R e c i e v e a o n tpiu
TRIM Record No 17/27109
SCHEDULE 3 - THE PROVISION
(1) Transfer o f land
(a) Within six months from the Gazettal the Landowner must, at no cost to the Minister, serve a
Transfer on the Minister or his nominee.
(b) The Landowner must ensure that on serving the Transfer:
the Biodiversity Offset Land is free from any encumbrances; or
relevant discharges in registrable form are also served on the Minister or his nominee at the
same time in relation to any encumbrances.
(c) The Minister must hold the documents referred to in (a) above in escrow until the Biodiversity
Offset Land is transferred and lodged with the Office of Finance and Services.
(d) The Landowner must immediately comply, or procure compliance with, any requisitions raised by
the Registrar-General in relation to the Transfer.
(e) On registration of the Transfer referred to in clause 1(b) and 1(c) above by the Registrar-General,
the Minister will have an estate in fee simple in the Biodiversity Offset Land, freed and discharc '
from all other estates, interests, trusts, restrictions, dedications, reservations, easements other
than those referred to in subclauses (k), (I) and (m) below, rights, charges and contracts in, over
and in connection therewith.
The Landowner will not be a party to any Dealing in relation to the Biodiversity Offset Land that
will prejudice the ability of the Minister to obtain registration of any document delivered to it.
(g) The Landowner will not seek compensation for the Dedication of the Biodiversity Offset Land.
(h) The Landowner will pay all rates and taxes owing in respect of the Biodiversity Offset Land up to
and including the date of Transfer of the Biodiversity Offset Land after which the Minister will be
liable.
(i) The Landowner, from the date of this Agreement, must not undertake any action or activity, prior
to the Transfer being registered that will Degrade or have a detrimental effect on the conservation
or Aboriginal heritage values of the Biodiversity Offset Land except where the Landowner is:
(I) directed to undertake such action or activity by another government agency or
instrumentality (such as the Rural Fire Service);
(ii) maintaining existing access and existing tracks; or
(iii) otherwise required by law to undertake such an action or activity.
(j) The Landowner agrees to indemnify the Minister and Council against all claims, loss or damage
suffered as a result of any breach by the Landowner of the provisions set out in this Clause 1 of
Schedule 3.
(k) The Landowner agrees to transfer its lands associated with the existing Transgrid easement on
Lot 1 DP78136 and any future infrastructure easements traversing the Biodiversity Offset Land
under this Agreement if they are not subsequently required for infrastructure by a Master Plan or
Structure plan upon request by the Minister despite any termination of this Agreement.
(I) In the event that the Minister does not request the transfer of the infrastructure easements then
the Landowner agrees that the Minister may use those lands at no cost for the purposes of
accessing the Biodiversity Offset Land.TRIM Record No 17/27109
Reeleved o n 25/05/201 1 1 /.2/.43 P a g e 19
(m) The Landowneragress to raise no objection to the transfer o f Crown and Council controlled roads
.across the.Biodiversity..P.ffspt. Land .to °the Minister, it desireci.by the Minister.
(n) Prior to the transfer of the Biodiversity Offset Land the Landowner shall lodge a Bank Guarantee
with the Minister to the value of $1,000,000 payable as compensation, in lieu of the
Environmental Contribution,required by.ployse:4 of SChedgle3,only in accordance with clause (2)
Of Schedule 3.
(2) Compulsory Acquisition and Compensation
(a) This clause 20111Y applies if the Landowner does not Transfer any.part of the Biodiversity Offset
Land:that it owns to the Minister in accordance with clause 1.óf Schedule 3.
(b) The Landowner consents to the Minister compulsorily acquiring the Biodiversity Offset Land in
accordance with the Land Acquisition (Just Terms CompensatiOn) ;60 1991 (NSW) for the
amount o f $1.00,
Landowner Shall pay the Minister the compensation agreed to under the Bank Guarantee
established undei- Clause 1(n) of Schedule 3. ,
(d) The Landowner and the Minister agree that:
(i) this clause 2 is an agreement between them for the purposes of section 30 of the Land
Acquisition (Just Terms Compensation) Act 1991 (NSW); and
••
(ii) in this clause 2 they have agreed on all relevant matters concerning the compulsory
acquisition and the compensation to be paid for that aCquisitiOn.
(e) The Landowheilridemnifie5 and:agree,to keep, ipcieM.hitleci4he MhiStee;11.Pdfor* nominee.,
against all claimsmade against the Minister or his,tiorninee. es:a:result Of..anya410.i.sition.bythe
Minister o r his nernillee of the whale or any part O f t * Blodiversity Offset Land under clause g•
. •
(0 .•
The L.4n oWner..mostppy,;lhe klipiste!-:promptly.opliemop ..arkameynt.equivalent to aft 69P
,
incurred .by the Minister acquiring the Whole or any part of Alio blodiversity Offset Land as
contemplated by this elailse2. • " . .
(3) Works on the Biodiversity Offset Land
Prior to transfer of the Biodiversity Offset Land:
(a) The Landowner must carry out or procure the carrying out of the following works on the
Biodiversity Offset Land:
(0 A registerable Deposited Plan of the Biodiversity Offset Land and the
Development Land with associated exclusions and infrastructure easements in
accordance with Schedule 2 and Plans C and D must be completed by a
registered surveyor and submitted to the Parties for agreement prior to the
Deposited Plan being registered.
(ii) To the extent required by, or consistent with, any formal lease requirements, the
Landowner must take all actions practical to remove cattle from the Biodiversity
Offset Land.TRIM Record No 17/27109
Recleved o n 2/l1D/Ltii 11,1.42
(iii) Where removal of cattle is not possible, the Landowner must take all actions
practical to ensure that any imported cattle subject to the lease are quarantined
and cleaned to reduce the risk of introducing new weeds to the Biodiversity Offset
Land.
(b) The works described in clause (a) above must be completed to the satisfaction of the
Minister prior to the Transfer of the Biodiversity Offset Land.
(c) The works described in clause (a) above must be completed at no cost to the Minister.
(4) Environmental Contribution
(a) The Landowner must pay or provide a contribution of $ 1, 139,718.04 to the Minister
towards the conservation and management of the Biodiversity Offset Land.
(b) The Landowner must pay the Environmental Contribution In the instalments and on the
dates set out in Table 1 or as otherwise agreed by the Parties.
(c) The Minister agrees to apply the Environmental Contribution for the conservation and
management of the Biodiversity Offset Lands in accordance with the Statement of Works
subject to:
(i) any applicable Plan of Management or Statement of Interim Management Intent;
and
(ii) any requirements under the National Parks and Wildlife Act 1974.
Table I of Schedule 3 - Payment ScheduleTRIM Record No 17/27109
Recieved o n 25/05/2017 1 7 2 7 4 3 Page 21
Execution
Signed by,
Minister for Environment for the State of New
South Wales as the Minister administering the
National Parks & Wildlife Act 1974 (NSW)
Signature of Witness
51Leadits2---
The Honourable M a
A Sius2-404€1
Minister for the Environment
Ve„lit
cen.r.-1S
Name of Witness in full
Signed by,
..neral Manager for and on behalf of Greater
Taree City Council
Signature of W ness Signature of Authorised Officer
eol.1
1---t‘ree 0 71e- -V PDS
Name of Witness in f Name of Authorised Officer
Signed by,
• • and on behalf of Roche Group Pty Limited
Pty Ltd by authority of the company in the
presence of:
Sign ture o a ness Signature of Authoris Officer
Viek Ci GAL. C...P40:24...CWirmWes". 4 3 R.ccrie
Name of Witness in full Name of Authorised OfficerTRIM Record No 17/27109
PLAN A: T H E P R E S E N T ZONING
Greater Taree Local
Environmental Plan
2010
Land Zoning Map - Sheet LZN_014A
Zone
ttetLft.aurnocd Genre
B E I local Centr,
C a t r r a t t r a Cot
Llt.tts:
B u s a w s th-si-tectrttkre
Lmermse Ctrrlot
F. N a t a n t Patts & K i t e * Rczeivt‹.
Enveartirmt31 1n
EDEnusofinvettat tiattnemt•nt
1211 GetrtstelkJdsttw
LsoN Ihdt&tr&V
111111 tValun3 IWA6atoal
EDG.
=
-owl/ R.4.14.4r.tt
Vereitt• Re&titrid,
Low
1 = 1
t att,t,Lot lit:toont.
l'uotc R e a . . . - . al
Putalit ReutOon
Istrnatt. Ptut&y7 on
Foraitry
= I Rum' & n o n Hcoatn91
t1109.-
rtrostructurit
lost:A
Recteaucta: reptetwap
V o t t m g %Valero:Ns
Figure 6 Existing G T I E P 2010 L x i d ZcningMtTRIM Record No 17/27109
* m o v e d o n 2 10 / 11.21.4 Page
PLAN D: BIODIVERSITY OFFSET 2 LAND — OFFSET FOR WEST WALLSO A113/2011
41+14,4 431444 0)441
-1
Potential OffsettIng:
West Wei lsend
10-073 Brimbin West
Vegetation Mapping
Nprrn ty: iii
AroIert Rif
Legend
N P W S P1184.
0 Wain Offeal I run
BrImbln offset map May2011
RGS
;.d
M I 0re alrul_2
Duo 1_3
lAttp G
m gum al
& d n a ' fnnio 1E04
kW Ion, 5:3
Grid Auenti an V3p6i4 U.T
w i t . to.weipt. 4 . 1...., 9 , 4 * . ,
* * W M 41 a t * l o o n y o e t . o . . 4 • 4
97 U t i a f i f h / t 0 L . I . 7 , 4 . . a l , I r e , t 4 4 - P r , 4 4 4*i
. " I n • . * . . . . 1 . t194oropoe+ 9•011.9.
t a t . . . . . A v 0,..• P . p i 4.4 ) . . • A., *****1**411*** - : 4 a n . . o . i . O a , 99.91.19.,..1.
1 ) 4 4 s * a * * • • O A 04‘44444 OM,
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* * * ' I d . 4 0 3 0 0 0 * * * * * 0 4 4 * W U . 44.441 54* * W s 0144**It 9 ' 0 ,011 *0
* N I tiant***440 A * One 14**1044,14,4 ' 4 4.01b 4 4 * 1 4 0 V * 4 4 , 0 4 4 1 * * 4 4 . 4 4.1..4
t 4 4*.404.
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414.114
Sales
• * 1414TRIM Record No 17/27109
Recieved on 25/05/2017 1727:43 Page 24
dim
U.„TRIM Record No 17/27109
K e e l e y . o n z
PLAN B: THE PROPOSED ZONING
Greater Taree Local
.mur Environmental Plan
area
Orry cerwer 2010
Land Zoning Map - Sheet LZMJ)14A
Zone
Phighbourbood Centre
l a Local Cerdre
Commercial Com
lamer Use
Business Developmerd
Eideopise Corridor
* W e l Parts &Nature Reserres
cco Envionnente Conservators
[go Enrirorrneotal Mareperrent
Ereiroonterdat Chew
tileseral brdatial
Utet Industrie
wegibawftwg
ma General Resitkodal
mg Low Dere* Residsodal
[Ei Lame Lot Resideadat
11111 Public Recreate
R E Private Reseadon
IiPrksary
a S S
Prodretion
Amoy
Pernary Produedre S e a l Lob
Wags
beastruetree MN
M Tourist
*Al
INJ Reaeational Watenkars
1111 Working Waterer:Ns
W r
. / _ . 4 , r .,. ,
IA0"4440'
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eree lea Jere 199401am% aril Royalty
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wia . _TRIM Record No 17/27109
PLAN C: THE BIODIVERSITY OFFSET 1 LAND AND DEVELOPMENT LAND P L A N . BRIMBIN
Biodiversity Offset
Land
Brimbin
Biodiveratty Dttaat2 - West Wend
Blodivaralty M a t 1 - BrInstin
Development Lands -while hatch
Edith' Nature Reseme
tr3
.
a i l VA,
.11144:
Adila
Area Calcutaeons
BrIntetn Nature Reserve 5321111
Blorevemity Conservalkm Lands 1072.6tsa
Development Umds 2674.8he
Office of
Environment
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