BYRON SHIRE COUNCIL

                                                                                                                            13.16 - Attachment 11

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Belbeck Investments Pty Ltd

Byron Shire Council

Voluntary Planning Agreement

Section 93F of the Environmental Planning and Assessment Act, 1979 (NSW)

Section 93F of the Environmental Planning and Assessment Act, 1979 (NSW)

Contents

1          Planning Agreement under the Act                                                               1

2          Application of this Agreement                                                                      1

3          Operation of this Agreement                                                                         1

4          Definitions and interpretation                                                                       2

4.1       Definitions                                                                                           2

4.2       Interpretation                                                                                        4

5          Development Contribution to be made under this Agreement                       5

6          Application of sections 94, 94A and 94EF of the Act to the Development      5

7          Caveat                                                                                                          5

8          Review of this Agreement                                                                             6

9          Dispute Resolution                                                                                       6

9.1       Reference to Dispute                                                                           6

9.2       Notice of Dispute                                                                                 6

9.3       Representatives of Parties to Meet                                                       6

10        Security and Enforcement                                                                            6

10.1    Security                                                                                               6

10.2    Enforcement                                                                                        7

11        Notices                                                                                                         7

11.1    Delivery                                                                                               7

11.2    Change of Details                                                                                7

11.3    Giving of Notice                                                                                   8

11.4    Delivery outside of business hours                                                       8

12        Force Majeure                                                                                              8

13        Costs                                                                                                            9

14        Entire Agreement                                                                                         9

15        Governing law and jurisdiction                                                                    9

16        No fetter                                                                                                      10

17        Representations and warranties                                                                  10

18        Severability                                                                                                10

19        Waiver                                                                                                        10

20        GST                                                                                                            10

20.1    Construction                                                                                      10

20.2    Intention of the Parties                                                                        11

20.3    Consideration GST exclusive                                                              11

20.4    Payment of GST – additional payment required                                   11

20.5    Tax invoice                                                                                        12

20.6    Adjustment event                                                                               12

20.7    Reimbursements                                                                                12

20.8    No Merger                                                                                          12

21        Relationship of Parties                                                                               12

22        Counterparts                                                                                               13

 


BYRON SHIRE COUNCIL

                                                                                                                            13.16 - Attachment 11

Agreement made at                                   on

Parties

Byron Shire Council ABN 14 472 131 473 of 70-90 Station Street, Mullumbimby, New South Wales (Planning Authority)

Belbeck Investments Pty Ltd ABN 89 161 561 502 of Hanrick Curran, Level 11, 307 Queen Street, Brisbane, Queensland (Developer)

 

Background

A            The Developer is the owner of the Land.

B            In April 2013, the Developer submitted the Planning Proposal to the Planning Authority to make the Amending LEP and to facilitate the Development on the Land.

C            The Planning Proposal was lodged by the Planning Authority with DP&I on 19 September 2013 and received Gateway determination on 21 November 2013.

D            In connection with the Planning Proposal, the Developer offers to enter into this Agreement to make the Development Contribution if the Amending LEP is made.

 

Operative provisions

1        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 Act.

2        Application of this Agreement

This Agreement applies to the:

(a)     Land; and

(b)     Development.

3        Operation of this Agreement

This Agreement operates on and from the date that is the later of:

(a)     the date the Amending LEP is published on the NSW Legislation website; and

(b)     the date the Agreement is entered into as required by Clause 25C(1) of the Regulation.

4        Definitions and interpretation

4.1         Definitions

In this Agreement the following definitions apply:

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

Agreement means this planning agreement.

Amending LEP means the Local Environmental Plan proposed under the Planning Proposal to amend the Byron Local Environmental Plan 2014.

Authority means, in respect of a particular context or circumstance, each Federal, State or Local Government, semi-Government, quasi-Government or other body or authority, statutory or otherwise, including but not limited to any court or tribunal, having jurisdiction and responsibility in respect of that context or circumstance.

Business Day means a day which is not a Saturday, Sunday or bank or public holiday in Sydney.

Commencement Date means the date upon which the Agreement is taken to operate under clause 3.

Completion means the date upon which the Development Contribution is paid to the Planning Authority.

Dealing means subdividing, mortgaging, charging, encumbering or otherwise dealing with the Land.

Development means the ‘Ewingsdale Seniors Living" development as described in the Planning Proposal being a mixed use development inclusive of seniors housing, business premises, restaurants or cafes, shops and medical facilities.

Development Contribution means the payment of $25,000 to the Planning Authority as a contribution to the costs of the Traffic Study.

DP&I means the NSW Department of Planning and Infrastructure or any other Authority replacing it.

Explanatory Note means the Explanatory Note attached at schedule 2.

First Trigger Event means the date on which the Amending LEP is published on the NSW Legislation website.

Force Majeure Event means any of the following:

(a)          the declaration by a Court that the Amending LEP is invalid and where a modified LEP is not remade in similar form within 12 calendar months of the date of the declaration; or

(b)          any of the following:

(i)      act of God;
(ii)      law, rule, regulation, order or policy of any government or governmental authority;
(iii)     act of war declared or undeclared;
(iv)     accident, fire, explosion, epidemic
(v)     public disorder;
(vi)     riot, civil disturbance, insurrection, rebellion, sabotage or act of terrorists;
(vii)    flood, earthquake, hail, lightning, severe weather conditions or other natural calamity;
(viii)   strike, boycott, lockout or other labour disturbance,

which:

(ix)     prevents the Developer from carrying out or completing the  Development;
(x)     is beyond the control of the Developer; and
(xi)     was not directly or indirectly caused or contributed to by the Developer.

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 Lot 101 in Deposited Plan 1140936.

Local Environmental Plan has the meaning given to it in the Act.

LPI means the Land and Property Information of New South Wales or any other Authority replacing it.

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

Planning Application means a development application made under the Act for the Development or a stage of the Development.

Planning Approval means the determination by approval of the Planning Application for the Development or a stage of the Development.

Planning Proposal means the planning proposal submitted under Part 3, Division 4 of the Act for the Amending LEP, DP&I reference PP_2013_BYRON_002_00, or its amended form, as has been endorsed by the Planning Authority.

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

Traffic Study means the Ewingsdale Road Traffic Demand Modelling Study referred to in the Planning Authority's letter to the DP&I dated 30 July 2015.

Transfer Dealings means selling or transferring the Land.

4.2         Interpretation

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 this Agreement.

(b)     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.

(c)     A reference in this Agreement to dollars or $ means Australian dollars and all amounts payable under this Agreement are payable in Australian dollars.

(d)     A reference in this Agreement to any law, legislation or legislative provision includes any statutory modification, amendment, replacement or re-enactment, and any subordinate legislation or regulations issued under that legislation or legislative provision.

(e)     A reference in this Agreement to any agreement, deed or document is to that agreement, deed or document as amended, novated, supplemented or replaced.

(f)      A reference to a clause, part, schedule or attachment is a reference to a clause, part, schedule or attachment of or to this Agreement.

(g)     An expression importing a natural person includes any company, trust, partnership, joint venture, association, body corporate or governmental agency.

(h)     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.

(i)      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.

(j)      References to the word ‘include’ or ‘including’ are to be construed without limitation.

(k)     A reference to this Agreement includes the agreement recorded in this Agreement.

(l)      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.

(m)    Any schedules and attachments form part of this Agreement.

5        Development Contribution to be made under this Agreement

(a)     Subject to this Agreement the Developer is to make the Development Contribution within 28 days after the First Trigger Event.

(b)     If the Developer fails to make the Development Contribution in accordance with clause 5(a), then the Developer acknowledges and agrees that, unless otherwise agreed in writing by the Planning Authority, it will ensure that no Planning Applications are lodged with the Planning Authority for the Development or any other development on the Land.

(c)     Following the payment of the Development Contribution, the Developer shall prepare a draft development control plan in consultation with the Planning Authority and provide that to the Planning Authority as soon as reasonably practicable and no later than 6 months after the Development Contribution is paid.

6        Application of sections 94, 94A and 94EF of the Act to the Development

This Agreement does not exclude the application of sections 94, 94A and 94EF of the Act to the Development.

7        Caveat

(a)     Until such time as the Development Contribution is paid, the Developer agrees that the Planning Authority may, after the Commencement Date, lodge a caveat on the relevant folios of the Register held by the LPI pertaining to the Land.

(b)     If the Planning Authority lodges a caveat in accordance with clause 7(a), then the Planning Authority must during such time as the caveat remains lodged on the title of the Land:

(i)      provide written consent within 5 Business Days to any proposed Dealing in respect of the Land other than a Transfer Dealing;
(ii)     provide written consent within 5 Business Days to a proposed Transfer Dealing in circumstances where the proposed assignee, transferee, purchaser or other party (the "Incoming Party") of the Land or part of the Land has executed a Novation Deed in substantially the same form as contained in Annexure A;
(iii)     remove the caveat from the title to the Land promptly, following payment of the Development Contribution.

8        Review of this Agreement

(a)     This Agreement may be reviewed or modified and any review or modification of this Agreement will be conducted in the circumstances and in the manner determined by the Parties.

(b)     No modification or review of this Agreement will be of any force or effect unless it is in writing and signed by the Parties to this Agreement.

9        Dispute Resolution

9.1         Reference to Dispute

If a dispute arises between the Parties in relation to this Agreement, then either Party must resolve that dispute in accordance with this clause.

9.2         Notice of Dispute

The Party wishing to commence the dispute resolution processes must notify the other in writing of:

(a)     the intent to invoke this clause;

(b)     the nature or subject matter of the dispute, including a summary of any efforts made to resolve the dispute other than by way of this clause; and

(c)     the outcomes which the notifying Party wishes to achieve (if practicable).

9.3         Representatives of Parties to Meet

(a)     The representatives of the Parties must promptly (and in any event within 14 Business Days of the written notice provided in accordance with clause 9.2) meet in good faith to attempt to resolve the notified dispute.

(b)     The Parties may, without limitation:

(i)      resolve the dispute during the course of that meeting;
(ii)     agree that further material, expert opinion or consideration is needed to effectively resolve the dispute (in which event the Parties will, in good faith, agree to a timetable for resolution);
(iii)     agree that the Parties are unlikely to resolve the dispute and, in good faith, agree to a form of alternative dispute resolution (including expert determination, arbitration or mediation) which is appropriate for the resolution of the relevant dispute.

10      Security and Enforcement

10.1       Security

The Parties agree that the right of the Planning Authority to register a caveat on the Land constitutes suitable means of enforcement for the purpose of section 93F(3)(g) of the Act.

10.2       Enforcement

(a)     Without limiting any other remedies available to the Parties, this Agreement may be enforced by any Party in any Court of competent jurisdiction.

(b)     Nothing in this Agreement prevents:

(i)      a Party from bringing proceedings in the Land and Environment Court or any other Court of competent jurisdiction to enforce any aspect of this Agreement or any matter to which this Agreement relates; and
(ii)     the Planning Authority from exercising any function under the Act or any other Act or law relating to the enforcement of any aspect of this Agreement or any matter to which this Agreement relates.

11      Notices

11.1       Delivery

Any notice, consent, information, application or request that must or may 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.

(c)     Emailed to that Party at its email address set out below.

Byron Shire Council

Attention:                         General Manager

Address:                         70-90 Station Street, Mullumbimby, New South      Wales

Fax Number:                   [insert]

Email:                                      [insert]

 

 

Belbeck Investments Pty Ltd

Attention:                                Leigh & John Belbeck

Address:                         85 Yarranabbe Road, Darling Point, NSW 2027

Email:                              leigh.belbeck@gmail.com

                                       john.belbeck2@gmail.com

11.2       Change of Details

If a Party gives the other Party three Business Days' notice of a change of its address, email address or fax number, any notice, consent, information, application or request is only given or made by that other Party if it is delivered, electronically sent, posted or faxed to the latest address, email address or fax number.

11.3       Giving of Notice

Subject to clause 11.4, any notice, consent, invoice, information, application or request is to be treated as given or made at the following time:

 

(a)     if it is delivered by process server, when it is served at the relevant address;

(b)     if it is sent by registered post, two Business Days after it is posted; and

(c)     if it is sent by email, when a delivery confirmation report is received by the sender, unless subsequently the sender receives a delivery failure notification, indicating that the electronic mail has not been delivered.

11.4       Delivery outside of business hours

If any notice, consent, information, application or request is delivered on a day that is not a Business Day, or if on a Business Day, after 5.00 pm 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.

12      Force Majeure

(a)        If a Party is unable by reason of a Force Majeure Event to carry out wholly or in part its obligations under this Agreement, it must:

(i)         give to the other Parties prompt notice of the force majeure with reasonably full particulars; and

(ii)        suggest an alternative method, if any, of satisfying its obligations under this Agreement.

(b)        If a Party is unable to satisfy its obligations under this Agreement by an alternative method, the obligations of the Parties, and any time periods, so far as they are affected by the Force Majeure Event are then suspended during continuance of the force majeure and any further period as may be reasonable in the circumstances.

(c)        The Party giving such notice under this clause must use all reasonable efforts and diligence to remove the Force Majeure Event or ameliorate its effects as quickly as practicable.

(d)        If the Parties are unable to agree on the existence of a Force Majeure Event or the period during which the obligations of the Parties, and any time periods, are suspended during the continuance of the Force Majeure Event, that dispute must be referred for determination under clause 9.

(e)        If a Force Majeure Event cannot be rectified to the mutual satisfaction of the Parties and the Developer, in its sole discretion, determines that it is unable to undertake or continue with the Development, then upon the surrender of any existing Planning Approvals that relate to works that have not yet been physically commenced (as defined in the Act), the Developer may terminate this agreement by written notice to the Planning Authority in which event neither Party will have any claim against the other under this Agreement.

(f)        If paragraph (e) applies, the Planning Authority shall do all things reasonably necessary including executing any necessary documents to enable the Developer to remove the notation of this Agreement on the relevant folios of the Torrens title register held by LPI relating to the land within 20 Business Days of receiving written request from the Developer.

13      Costs

(a)     The Parties agree to bear their own costs of preparing, negotiating, executing and stamping this Agreement and any document related to this Agreement.

(b)     The Parties agree that the legal costs of any modification to this Agreement will be borne by the party that requests the modification.  Where more than one party requests the modification, the legal costs associated with modification to this Agreement will be split between the Parties equally, unless otherwise agreed in writing.

14      Entire Agreement

(a)     This Agreement contains everything to which the Parties have agreed in relation to the matters those documents  deal 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, except as permitted by law.

(b)     Pursuant to clause 25E(7) of the Regulation, the Parties agree that the Explanatory Note is not to be used to assist in construing this Agreement.

15      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.

16      No fetter

Nothing in this Agreement shall be construed as requiring the Planning Authority 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.

17      Representations and warranties

(a)        The Developer represents and warrants that on the date of this Planning Agreement the Developer is the legal and beneficial owner of the Land.

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

18      Severability

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. 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.

19      Waiver

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. A waiver by a Party is only effective if it is in writing. 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.

20      GST

20.1       Construction

In this clause 20:

(a)     words and expressions which are not defined in this Agreement but which have a defined meaning in the GST Law have the same meaning as in the GST Law; and

(b)     GST Law has the same meaning given to that expression in the GST Act.

20.2       Intention of the Parties

Without limiting the operation of this clause 20, as at the date of this Agreement, the Parties intend that:

(a)     Divisions 81 and 82 of the GST Act apply to the supplies made under and in connection with this Agreement;

(b)     no tax invoices will be exchanged between the Parties; and

(c)     no additional amount will be payable to a Supplier (as defined in clause 20.4 below) on account of GST.

20.3       Consideration GST exclusive

All prices or other sums payable or consideration to be provided under this Agreement are exclusive of GST.

20.4       Payment of GST – additional payment required

(a)     If an entity (Supplier) makes a taxable supply under or in connection with this Agreement (Relevant Supply), then, subject to clause 20.4(d), the Party required under the other provisions of this Agreement to provide the consideration for that Relevant Supply (Recipient) must pay an additional amount to the Supplier (GST Amount), as calculated under clause 20.4(b), 20.4(c) and 20.4(e) (as appropriate).

(b)     To the extent that the consideration to be provided by the Recipient for the Relevant Supply under the other provisions of this Agreement is a payment of money (including, for the avoidance of doubt, any payment under clauses 20.4(c) and 20.4(e)), the Recipient must pay to the Supplier an additional amount equal to the amount of the payment multiplied by the rate or rates of GST applicable to that Relevant Supply.

(c)     To the extent that the consideration to be provided by the Recipient for that Relevant Supply is neither:

(i)      a payment of money; nor
(ii)     a taxable supply,

(Non-taxable non monetary consideration),

the Recipient must pay to the Supplier an additional amount equal to 1/11th of the GST-inclusive market value of the Non-taxable non-monetary consideration.

(d)     To the extent that the consideration payable by the Recipient is a taxable supply made to the Supplier by the Recipient, then, notwithstanding clause 20.4(a) and subject to clause 20.4(e), no additional amount is payable by the Recipient to the Supplier on account of the GST payable on that taxable supply.

(e)     Notwithstanding clause 20.4(d) if the GST-inclusive market value of the non-monetary consideration of the Relevant Supply (Supplier's taxable supply) is less than the GST-inclusive market value of the non-monetary consideration comprising the taxable supply made by the Recipient to the Supplier for the Supplier's taxable supply (Recipient's taxable supply) then, the Recipient must pay to the Supplier an additional amount equal to 1/11th of the difference between the GST-inclusive market value of the Recipient's taxable supply and the GST-inclusive market value of the Supplier's taxable supply.

(f)      The recipient will pay the GST Amount referred to in this clause 20.4 in addition to and at the same time as the first part of the consideration is provided for the Relevant Supply.

20.5       Tax invoice

The Supplier must deliver a tax invoice to the Recipient before the Supplier is entitled to payment of the GST Amount under clause 20.4.  The Recipient can withhold payment of the GST Amount until the Supplier provides a tax invoice.

20.6       Adjustment event

If an adjustment event arises in respect of a taxable supply made by a Supplier under this Agreement, the GST Amount payable by the Recipient under clause 20.4 will be recalculated taking into account any previous adjustment under this clause to reflect the adjustment event and a payment will be made by the Recipient to the Supplier or by the Supplier to the Recipient as the case requires.

20.7       Reimbursements

Where a party is required under this Agreement to pay, indemnify or reimburse an expense, loss or outgoing of another party, the amount to be paid, indemnified or reimbursed by the first party will be the sum of:

(a)     the amount of the expense, loss or outgoing less any input tax credits in respect of the expense, loss or outgoing to which the other party, or to which the representative member of a GST group of which the other party is a member, is entitled; and

(b)     any additional amount payable under clause 20.4 in respect of that reimbursement.

20.8       No Merger

This clause 200 does not merge in the completion, discharge, rescission or termination of this document or on the transfer of any property supplied or to be supplied under this document.

21      Relationship of Parties

This Agreement is not intended to create a partnership, joint venture or agency relationship between the Parties.

22      Counterparts

This document may consist of a number of counterparts and, if so, the counterparts taken together constitute one document.

 


BYRON SHIRE COUNCIL

                                                                                                                            13.16 - Attachment 11

Schedule 1

Section 93F Requirement

Provision of the Act

This Agreement

Under section 93F(1), the Developer has:

 

(a)      sought a change to an environmental planning instrument.

(a)       Yes

(b)      made, or proposes to make, a development application.

(b)      Yes (to be made at a later date)

(c)      entered into an agreement with, or is otherwise associated with, a person, to whom paragraph (a) or (b) applies.

(c)       No

Description of the land to which this Agreement applies- (Section 93F(3)(a))

Lot 101 in Deposited Plan 1140936

Description of the change to the environmental planning instrument to which this Agreement applies - (Section 93F(3)(b)(i))

Amending the Byron Local Environmental Plan 2014 to permit additional planning uses on the Land, including seniors housing, business premises, restaurants or cafes, shops and medical facilities.

Description of the development to which this Agreement applies- (Section 93F(3)(b)(ii))

The Development comprises the ‘Ewingsdale Seniors Living" development as described in the Planning Proposal being a mixed use development inclusive of seniors housing, business premises, restaurants or cafes, shops and medical facilities.

The scope, timing and manner of delivery of Development Contributions required by this Agreement - (Section 93F(3)(c))

See clause 5

Applicability of Section 94 of the Act - (Section 93F(3)(d))

Section 94 is not excluded as it applies to the Development.

Applicability of Section 94A of the Act - (Section 93F(3)(d))

Section 94A is not excluded as it applies to the Development.

Applicability of Section 94EF of the Act - (Section 93F(3)(d))

Not applicable.

Applicability of Section 93F(3)(e) of the Act

See clause 6.

Mechanism for Dispute resolution - (Section 93F(3)(f))

See clause 9.

Enforcement of this Agreement - (Section 93F(3)(g))

See clause 7 and 10.

Registration of this Agreement (Section 93H)

Not applicable.

No obligation to grant consent or exercise functions - (Section 93F(9))

See clause 16.


Explanatory Note

Environmental Planning and Assessment Regulations 2000

(Clause 25E)

Explanatory Note

1        Planning Agreement

Under section 93F of the Environmental Planning and Assessment Act 1979 (NSW) and Clause 25E of the Environmental Planning and Assessment Regulations 2000

1        Parties

Byron Shire Council ABN 14 472 131 of 70-90 Station Street, Mullumbimby, New South Wales (Planning Authority)

Belbeck Investments Pty Ltd ABN 89 161 561 502 of of Hanrick Curran, Level 11, 307 Queen Street, Brisbane, Queensland (Developer)

2        Description of Subject Land

The land is contained in folio identifier Lot 101 in Deposited Plan 1140936 located at Ewingsdale Road, Ewingsdale, New South Wales.

3        Description of Proposed Change to Environmental Planning Instrument

The Developer has submitted a Planning Proposal to the Planning Authority to rezone the Land.

An Amending LEP will permit additional planning uses on the Land, including seniors housing, business premises, restaurants or cafes, shops and medical facilities.

4        Summary of Objectives, Nature and Effect of the Draft Planning Agreement

The objective of the draft Planning Agreement is to facilitate the delivery of the Development Contribution to:

(a)        assist in the funding of the Ewingsdale Road Traffic Demand Modelling Study required by the Planning Authority to assess and monitor the traffic impacts of development in the region (Traffic Study); and

(b)        provide a draft development control plan to the Planning Authority as soon as reasonably practicable and no later than 6 months after the Development Contribution is paid to assist with better planning outcomes for the region.

The nature of the draft Planning Agreement is a contractual relationship between the Planning Authority and the Developer for the payment of the Development Contribution and the provision of a draft development control plan.

The effect of the draft Planning Agreement is that the Developer must provide:

(a)        a Development Contribution that comprises the payment of $25,000 to the Planning Authority within 28 days of the later of the date on which the Amending LEP is published on the NSW Legislation website and the execution of the agreement; and

(b)        a draft development control plan to the Planning Authority as soon as reasonably practicable and no later than 6 months after the Development Contribution is paid.

The draft Planning Agreement does not exclude the application of s94, s94A and s94EF of the Act to the Development.

5        Assessment of the Merits of the Draft Planning Agreement, including the impact on the public or any relevant section of the public

The draft Planning Agreement satisfies the objectives of the Act through the Developer:

(a)        making the Development Contribution to assist in the funding of the Traffic Study to assess and monitor the traffic impacts of development in the region and to ensure that existing communities which may be affected do not bear the cost of this assessment; and

(b)        provide a draft development control plan to the Planning Authority as soon as reasonably practicable and no later than 6 months after the Development Contribution is paid to assist with better planning outcomes for the region and community.

 The positive impact on the public is that the public will gain benefit from:

(a)          the outcomes of the Traffic Study and better planning outcomes in the region;      and

(b)          relevant contributions under s94, s94A and s94EF of the Act which will be             required to be paid by the relevant proponent of the Development at the              Planning Application stage.

6        Other Matters

7.1 How the draft Planning Agreement promotes public interest and one or more of the objects of the Act

The draft Planning Agreement promotes the public interest by:

·     providing the Development Contribution comprising a financial contribution towards the Traffic Study and the preparation of a draft development control plan to assist the Planning Authority to monitor the planning impacts of development in the area and lead to better planning outcomes in the region;

·     providing for the carrying out of the required Development Contribution in a timely manner in connection with the Amending LEP; and

·     promoting the sharing of responsibility for local traffic impacts and monitoring between local councils and developers,

and therefore promotes the objects of the Environmental Planning and Assessment Act 1979 as set out in s5(a)(ii) and s5(b).

 

7.2 How the draft Planning Agreement promotes one or more of the elements of the council’s charter under Section 8 of the Local Government Act 1993

The draft Planning Agreement is consistent with the Planning Authority's charter under Section 8 of the Local Government Act 1993:

(a)     to have regard to the long term and cumulative effects of its decisions;

(b)     to bear in mind that it is the custodian and trustee of public assets and to effectively plan for, account for and manage the assets for which it is responsible;

(c)     to engage in the long term strategic planning on behalf of the local community; and

(d)     to keep the local community and the State government (and through it, the wider community) informed about its activities.

 

7.3 The planning purpose/s served by the draft Planning Agreement

The draft Planning Agreement will provide for a reasonable means of achieving the planning purpose by the co-ordinated provision of local and developer funded traffic  assessment and planning impact monitoring and will assist the Planning Authority's strategic planning of the region.

 

7.4 Whether the draft Planning Agreement conforms with Council’s capital works program

The draft Planning Agreement conforms with the Planning Authority's proposed capital works program as it assists the Planning Authority undertake the Traffic Study to assess the likely traffic impacts created by development in the region, which would otherwise be required to be provided under a contributions plan under Division 6 of Part 4 of the Environmental Planning and Assessment Act 1979.

 


BYRON SHIRE COUNCIL

                                                                                                                            13.16 - Attachment 11

 

Executed as a deed

Executed by Belbeck Investments Pty Ltd ABN 89 161 561 502

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Company Secretary/Director

 

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Name of Company Secretary/Director (print)

 

 

 

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Director

 

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Name of Director (print)

 

 

Executed by Byron Shire Council ABN 14 472 131 473 by its duly appointed officer in the presence of:

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Witness

 

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Name of Witness (print)

 

 

 

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Officer

 

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Name of Officer (print)