Agenda of Byron Shire Reserve Trust Committee

BYRON SHIRE COUNCIL

Staff Reports - Corporate and Community Services 4.1

Staff Reports - Corporate and Community Services

Report No. 4.1 Brunswick Heads Tennis Club Inc Trust Licence

Directorate: Corporate and Community Services

Report Author: Paula Telford, Leasing and Licensing Coordinator

File No: I2018/671

Theme: Corporate Management

Governance Services

Summary:

The Byron Coast Reserve Trust resolved (Resolution 13-291) to enter into a five (5) year Trust lease with the Brunswick Heads Tennis Club (‘the Club’). The Trust Lease was never granted due to Crown Lands subsequently providing in-principle support for a ten (10) year Trust Licence instead of the five (5) year Trust lease, and the requirement for works to be urgently undertaken costing $25,000 to bring the Club building up to a usable standard and $27,000 to replace court fencing.

Since 2013, both Council and the Club have financially contributed to the upgrade of the facility to bring it to an acceptable standard. To allow for the Club to apply for future grants and or loan funding for further facility improvements a ten (10) year Trust Licence is now being sought.

A Trust Licence for a term of more than twelve months requires Ministerial consent. This report recommends Council as the Byron Coast Reserve Trust enters into the proposed ten (10) year Trust Licence and forward the Licence to Crown Lands Grafton Office for Ministerial for consent.

RECOMMENDATION:

1. That Council, as the Byron Coast Reserve Trust, authorise the General Manager, to enter into a ten (10) year Trust Licence in Attachment 1 with the Brunswick Heads Tennis Club Incorporated, over part of Reserve R97139 commencing 25 May 2018 with the following conditions:

a) Minimum Crown annual rent of $490.00 (excluding GST) and increased by CPI annually;

b) All maintenance costs to be met by the Licensee; and

c) All Licence establishment costs to be met by the Licensee.

2. That Council note for Crown Reporting purposes the difference between the minimum Crown annual rent of $490.00 (excluding GST) (as increased by CPI) and the annual market rent of $2,200.00 (excluding GST).

3. That Council, as the Byron Coast Reserve Trust, authorise the General Manager to execute and affix the Seal to the 10 year Trust License with the Brunswick Heads Tennis Club over part Lot 437 DP 839424 in accordance with the Local Government (General) Regulation.

Attachments:

1 Ten (10)Year Trust Licence to Brunswick Heads Tennis Club term 25 May 2018 to 24 May 2028., E2016/80126 , page 9⇩

Report

Land:

Address: Brunswick Heads Tennis Courts, South Beach Road, Brunswick Heads.

Land: Part Lot 437 DP 839424

Crown Reserve R97139 gazetted purpose Public Recreation

Owner: Department of Industries Crown Land & Water Division

Manager: Byron Coast Reserve Trust

Zoned: RE1 Public Recreation

Background:

The Byron Coast Reserve Trust resolved (Resolution 13-291) to enter into a five (5) year Trust lease with the Brunswick Heads Tennis Club (‘the Club’) conditional on the Club paying minimum Crown rent, all operating costs and costs of proposed capital works subject to the courts and club remaining useable.

The granting of the lease subsequently stalled for two reasons: 1) because Crown Lands Grafton Office granted in-principle support for a ten (10) year Trust licence and 2) the estimated cost of $25,000 was needed to urgently bring the Club building up to a usable standard and $27,000 to replace court fencing.

As a consequence the Club has been operating since 2013 under temporary twelve (12) month Trust licences. The consecutive granting of short-term licences made it difficult for the Club to apply for grants or other loan funding to improve the premises.

This Report recommends that the Byron Coast Reserve Trust resolve to grant the Club a ten (10) year Trust Licence for the purpose of tennis club and associated activities and to forward the Trust Licence for Ministerial consent.

Ministerial consent:

A Trust Licence exceeding twelve months requires Ministerial consent before the grant is permitted. This Report recommends Ministerial consent should be granted for a ten (10) year Trust Licence because:

i. the Licence is in the public interest because the Licence will permit the operation of the only tennis court in Brunswick Heads being one of a few active recreational places in the town;

ii. the purpose of the Licence for tennis club and associated activities is compatible with the public recreation purpose of Reserve R97139;

iii. the Licence will provide for two synthetic tennis courts and small, all access, club house to operate on R97139 being necessary to reduce environmental impact to the site;

iv. the proposed ten (10) year tem of the Licence will provide the Club with necessary security to apply for grant or loan funding to improve the facility.

v. Council directly negotiated with the Brunswick Tennis Club Inc for the proposed Trust Licence on the basis that the proposal fell outside of the Independent Commission Against Corruption, (‘ICAC’) direct negotiation guidelines. The decision was based on the cost to Council to publically tender the letting of 10-year Trust licence over the premises far outweighed any benefit to Council in running that process. This was because the Club had substantially improved the facility since 2013 and had solely contributed $17,000 towards a $25,000 court upgrade.

vi. the Club as an incorporated association and a sporting or recreation organisation and therefore eligible for a rent rebate to the Crown land minimum value currently $490.00 (exclusive of GST) per annum (‘proposed rent’). The proposed rent offers proper return for public use of R97139 because it will enable the Club to continue to improve the facility.

vii. a condition of the Licence will be to increase annual rent by CPI all groups Sydney with a full rent review every three years.

viii. a standard Trust Licence will be issued and will terminate on revocation of the reserve, indemnify the Byron Coast Reserve Trust, the Crown and the NSW Government against claims for compensation and provides the Club provide $20,000,000 public liability insurance.

Native Title

Lot 437 DP839424 is subject to a Native Title application. Council consulted with NTS Corp on 17 December 2016 providing at least 28 days to comment on the proposed ten (10) year Trust Licence. NTS Corp notified Council that no comments were received. Council also consulted with the Tweed Byron Local Aboriginal Land Council whereby it was determined that there were no unresolved Aboriginal Land Claims at the site is present.

Financial Implications

A market rent valuation was undertaken by Valuers Australia Real Estate Advisors which determined the annual market rent for the premise at $2,200 (excluding GST) per annum.

The Brunswick Heads Tennis Club as an incorporated association and a sporting or recreation organisation is eligible for a rent rebate to the Crown land minimum value currently $490.00 (exclusive of GST) per annum, under clause 2.2(b)(ii) of the NSW Government Rent concessions and hardship relief for Crown land tenure holders.

The cost of preparing the Licence as set in Council fees and charges 2017/2018, should be payable by the Licensee.

All internal maintenance costs to the building should be made the responsibility of the Licensee.

Statutory and Policy Compliance Implications

Crown Land Act 1989 (NSW)

Section 102

(1) A reserve trust may not sell, lease or mortgage land, or grant an easement or a licence (except a temporary licence) in respect of land, comprising the whole or any part of the reserve unless:

(a) the trust has decided that it is desirable to do so on the terms and conditions specified in the decision,

(b) in the case of a proposed sale, the trust has caused a notice to be published in a newspaper circulating in the locality of the land setting out the date and the terms and conditions of the trust's decision, the location of the land and other prescribed particulars,

(c) the trust has (in the case of a proposed sale, not earlier than 14 days after the publication of the newspaper notice) applied to the Minister in writing for consent, giving full details of the proposal, and

(d) the Minister has consented in writing to the proposal.

(2) The Minister may not give a consent under subsection (1) (d) to:

(a) a sale,

(b) a lease for a term exceeding 5 years, or

unless at least 14 days have elapsed since notice of intention to give the consent has been published in a newspaper circulating in the locality in which the land is situated or in a newspaper circulating generally in the State.

(3) The Minister's consent may relate to the whole or part only of the land with which the application is concerned.

(4) If the application for consent proposes a sale, lease, easement or licence, the Minister's consent:

(a) may be general, authorising the proposal subject to such conditions, restrictions, reservations and covenants, and in such manner and within such time, as the Minister thinks desirable, or

(b) may be specific, approving of a particular contract of sale, lease or licence.

(5) If the application for consent relates to a mortgage, the Minister's consent can only be given to the specific terms of the mortgage.

(6) In giving consent, the Minister may:

(a) vary the terms and conditions to which the sale, lease, easement, licence or mortgage is to be subject, and

(b) impose such other terms and conditions as the Minister thinks desirable.

(7) The Minister may, at any time, wholly or partly withdraw the consent or vary its terms, but only if to do so would not prejudice the rights of third parties.

(8) Nothing in this section applies to or in respect of the grant of an interment right under the Cemeteries and Crematoria Act 2013

BYRON SHIRE COUNCIL

Staff Reports - Corporate and Community Services 4.1 - Attachment 1

AGREEMENT dated day of 2018

BETWEEN BYRON COAST RESERVE TRUST

(hereinafter called the “Licensor”).

AND BRUNSWICK HEADS TENNIS CLUB INCORPORATED

(ABN 48 713 150 873)

(hereinafter called the “Licensee”).

THE PARTIES AGREE AS FOLLOWS.

1 INTERPRETATIONS, DEFINITIONS AND ADMINISTRATION

Authority for grant of Licence

1.1 The Licensor warrants:

(a) that the Premises comprise the whole or part of a Reserve within the meaning of Part 5 of the Crown Lands Act 1989;

(b) that the Licensor was established and appointed as Trustee of the Reserve under the Crown Lands Act 1989; and

(c) that the Licensor has power under Section 102 of the Crown Lands Act 1989 to grant a licence of the Reserve or part thereof subject to the Minister’s Consent.

Effect of Instrument

1.2 The Licensor and the Licensee expressly acknowledge that no rights or interests are conferred on either Party by the provisions of this instrument unless;

(a) the Minister has granted consent under Section 102 of the Crown Lands Act 1989 to the grant of this Licence;

2 DEFINITIONS

In this Licence unless the contrary intention appears:

Access Plan means the drawing annexed to each Premises Appendix depicting the Premises and a description of the route of access to the Enclosed Area.

Base Annual Rent means:

(a) the Initial Rent where the rent has not been redetermined or adjusted in accordance with sub-clauses 14.4 or 14.5; or

(b) in any other case - the Rent as last redetermined or adjusted in accordance with those provisions.

Business Day means any day which is not a Saturday, Sunday or Public Holiday in New South Wales;

Commencement Date means the date referred to in Column 2 of Item 16 of Schedule 1;

Consumer Price Index Number means in relation to a quarter the number for that quarter appearing in the Consumer Price Index (All Groups Index) for Sydney published by the Australian Statistician;

Due Date means the date for payment of Rent under this Licence as is specified in Column 2 of Item 6, of Schedule 1;

Enclosed Area means the fenced area (which comprises the Premises and Third Party Exclusive Areas) described in each Premises Appendix as the Enclosed Area and shown on the Plan annexed to each Premises Appendix where land is, or is intended to be fenced;

Environmental Law means any law or state protection policy incorporated by reference to or being part of any Law relating to protection of the environment;

Expiry Date means the date referred to in Column 2 of Item 17 of Schedule 1;

"GST", "taxable supply", "consideration", "tax invoice" and “GST amount” have the meanings given to those terms in A New Tax System (Goods and Services Tax) Act 1999;

Hazardous Substance means a substance that because of its quality, concentration, acute or chronic toxic effects, carcinogenicity, teratogenicity, mutagenicity, corrosiveness, flammability, physical, chemical or infectious characteristics, may pose a hazard to property, human health or the environment when improperly treated, stored, disposed of or otherwise managed;

Improvements mean any structure of a permanent nature attached to the land;

Initial Rent means the Rent payable under this Licence in respect of each Premise as is specified in Column 2 of Item 5 of Schedule 1;

Law includes the provisions of any statute, rule, regulation, proclamation, ordinance or by-law, present or future, whether state, federal or otherwise;

Licence means this licence including all Schedules and Annexures hereto;

Licensee means the licensee referred to in Column 2 of Item 2, of Schedule 1;

Licensor means the licensor referred to in Column 2 of Item 1 of Schedule 1 and includes its assigns and for the purpose of clauses 35, 36, 37, 38, 39, 40, 41, and 42 includes Her Majesty the Queen, the State of New South Wales and the Minister and their heirs, successors, agents, servants, employees and contractors;

Market Rent means the Rent as specified in Column 2 of Item 3, of Schedule 1 that would reasonably be expected to be paid for the site if it were offered for the same or a substantially similar use to which the site may be put under the Licence;

Market Rent Review Date means the date described as such in Column 2 of Item 8, of Schedule 1 and expressed as an absolute dollar or as a percent of the Market Rent;

Minister means the Minister administering the Crown Lands Act 1989;

Party/Parties mean the parties to this Licence;

Premises means the land and/or the buildings described in the Premises Appendix and on the plan annexed thereto;

Permitted Use means the use shown in Column 2 of Item 15, of Schedule 1;

Regulations mean the Crown Lands Regulation 2006;

Rent means the Base Annual Rent calculated and payable upon each Due Date less any Rent Rebate granted to the Licensee together with all other payments due to be paid by the Licensee as Rent under this Licence;

Rent Rebate means such amount as specified in Column 2 of Item 4 of Schedule 1 given to the Licensee from the Licensor as per clause 14.6 as expressed either as an absolute dollar value or a percentage of the market value;

Sub-Licensee means a person who holds a sub-licence of any part of the Premises from the Licensee in accordance with the provisions of this Licence;

Tenant Fixtures means any plant or equipment, fittings or improvements in the nature of fixtures brought onto the Premises by, or on behalf of, or at the request of, the Licensee;

Term means the term of operation of this Licence in relation to the Premises;

Term of Agreement means the figure set out in Column 2 of Item 18, of Schedule 1;

Third Party Exclusive Areas means those areas that are exclusively for the use of third parties as shown on the Plan annexed to each Premises Appendix.

3 CONSTRUCTION

3.1 This Licence shall be constructed in accordance with this clause unless the context requires otherwise;

3.1.1 Plurals

Words importing the singular include the plural and vice versa;

3.1.2 Gender

Words importing any gender include the other gender;

3.1.3 Persons

A reference to a person includes:

(a) an individual, a firm, unincorporated association, corporation and a government;

and

(b) the legal personal representatives, successors and assigns of that person;

3.1.4 Headings

Headings (including any headings described as parts and sub-headings within clauses) wherever appearing shall be ignored in constructing this Licence;

3.1.5 Clauses and sub-clauses

(a) A reference to a clause includes all sub-clauses, paragraphs, sub-paragraphs and other components which form part of the clause referred to;

(b) A reference to a sub-clause includes any sub-paragraphs and other components of the sub-clause referred to;

3.1.6 Time

A reference to time is a reference to local Sydney time;

3.1.7 Money

A reference to $ or dollars is a reference to the lawful currency of Australia;

3.1.8 Defined Terms

If a word of phrase is defined cognate words and phrases have corresponding definitions. A defined term, unless inconsistent with the context of its use, is denoted by the appearance of that word using a capital letter at the beginning of that word;

3.1.9 Writing

A reference to writing includes any mode of representing or reproducing words in tangible and permanently visible form;

3.1.10 Contra Preferentum

No rules of construction shall apply to the disadvantage of any Party responsible for preparation of this Licence or any part of it;

3.1.11 Statutes

A reference to a Statute, Act, legislation, ordinance, code or other law includes regulations and other statutory instruments under it and consolidations, amendments, re-enactments or replacements of any of them made by any legislative authority;

3.1.12 Licence

A reference to this Licence shall include any extension or variation of this Licence;

3.1.13 Priorities

If an inconsistency occurs between the provisions of this Licence and the provisions of a licence granted in accordance with this Licence, the provisions of this Licence shall prevail.

3.2 Warranties and Undertakings

(a) The Licensee warrants that it:

(i) has relied only on its own inquiries about this Licence; and

(ii) has not relied on any representation or warranty by the Licensor or any person acting or seeming to act on the Licensor’s behalf.

(b) The Licensee shall comply on time with undertakings given by or on behalf of the Licensee.

3.3 Further Assurances

Each Party must do everything necessary to give full effect to this Licence.

(a) Pursuant to clause 7, this Licence and any other agreement subsidiary to this Licence continue in full force and effect.

3.4 Relationship of Licensor and Licensee

Nothing contained or implied in this Licence shall be deemed or construed to create the relationship of partnership or of principal and agent or of joint venture between the Licensor and the Licensee. Specifically, the Parties understand and agree that neither the method of computation of Rent, nor any other provision, nor any acts of the Licensee and the Licensor or either of them will be deemed to create any relationship between them other than the relationship of Licensor and Licensee upon the terms and conditions only as provided in this Licence.

3.5 Time to be of the Essence

Where in any provision of this Licence a Party is given or allowed a specified time within which to undertake or do any act or thing or any power is conferred or any event occurs after the lapsing of a specified time, time shall be the essence of the contract in that regard.

4 SEVERABILITY

Any provision of this Licence which is prohibited or unenforceable in any jurisdiction shall as to such jurisdiction be ineffective to the extent of such prohibition or inability to enforce without invalidating the remaining provisions of such provisions in any other jurisdiction.

5 ESSENTIAL CONDITIONS OF LICENCE

The Licensor and the Licensee agree that the clauses specified in Column 2 of Item 19 of Schedule 1 are essential conditions of this Licence.

6 PERMITTED USE

6.1 Grant of Licence

The Licensor grants to the Licensee a right to occupy the area delineated on the plan annexed to the Premises Appendix.

6.2 Permitted Use only

The Licensee shall not:

(a) use the Premises;

(b) or allow the Premise to be used (except pursuant to a Licence lawfully granted by the Licensor),

for any purpose other than the Permitted Use specified or referred to in Column 2 of Item 15 of Schedule 1.

6.3 No exclusive possession

The Licensee acknowledges that this Licence does not confer exclusive possession of the Premises upon the Licensee.

7 COMMENCEMENT OF LICENCE AND TERM

This Licence shall commence on the date (and where a time is specified or referred to at that time) specified or referred to in Column 2 of Item 16, of Schedule 1 and subject to clauses 10 and 11 shall continue in force until the Expiry Date (and where a time is specified or referred to at that time) specified or referred to in Column 2 of Item 17, of Schedule 1.

8 NO RIGHT TO PURCHASE OR TRANSFER OF LICENCE RIGHTS

8.1 In respect of this Licence, and without limitation, the grant of this Licence does not confer upon the Licensee:

(a) a right to purchase or lease any part of the Premises; or

(b) any tenancy or other estate or interest in any part of the Premises other than contractual rights as Licensee under this Licence.

8.2 Subject to any other provisions of this Licence the Licensee shall not during the Term of this Licence, sub-licence, part with possession of the Premises, transfer or create any interest in the Licence or authorise or permit any person to occupy the Premises without the prior written consent of the Licensor and the Minister.

9 LICENSEE TO YIELD UP

9.1 The Licensee shall forthwith upon the termination of this Licence or any extension of it peaceably vacate the Premises at the Licensee’s expense.

9.2 The Licensee shall:

(a) remove all Tenant’s Fixture/s, signs, names, advertisements, notices or hoardings erected, painted, displayed, affixed or exhibited upon, to or within the Premises by or on behalf of the Licensee (other than a notice displayed by the Licensor); and

(b) rehabilitate the Premises, (to the extent to which it has been altered or affected by the Licensee’s occupation and use of the Premises) as nearly as practicable to the original condition before the installation of the Tenant’s Fixtures to the reasonable satisfaction of the Licensor; and

(c) ensure that when it vacates the Premises in relation to its occupation of the Premises under this Licence, the Premises comply with any Environmental Law to the extent applicable at the time of granting of this Licence; and

(d) leave the Premises in a clean and tidy condition.

9.3 Sub-clause 9.2 does not apply unless the Licensor permits the Licensee to carry out any works on the Premises reasonably required in order to comply with that clause.

10 TERMINATION OF LICENCE - S109 TO APPLY

10.1 Without limiting the Licensee’s statutory or other rights apart from this Licence, the Parties acknowledge that subject to subclause 10.2 this Licence shall terminate under section 109 of the Crown Lands Act 1989 if the Reserve is revoked or that part of the Reserve is revoked that comprises the whole or part of the Premises unless the revocation notification otherwise provides.

10.2 Where only part of the Premises is affected by the revocation or proposed revocation the Parties undertake to consult to determine if an agreement under Section 109(3) of the Crown Lands Act 1989 can be reached for the continuation of this Licence in respect to that part of the Premises not affected by the revocation.

10.3 The Licensee expressly acknowledges that as provided by Section 109(5) of the Crown Lands Act 1989 no compensation is payable in respect of the termination of this Licence by the operation of Section 109.

11 TERMINATION OF LICENCE ON DEFAULT

11.1 The Licensor may terminate this Licence in the manner set out below in the following circumstances:

(a) if the Rent or any part of it or any moneys owing to the Licensor under the Licence is or are in arrears for one month, whether formally demanded or not;

(b) if the Licensee breaches an essential condition of this Licence or any rule or regulation made under this Licence;

(d) if the Licensee is a corporation and an order is made or a resolution is passed for its winding up except for reconstruction or amalgamation;

(e) if the Licensee is a company and ceases or threatens to cease to carry on business or goes into liquidation, whether voluntarily or otherwise, or is wound up or if a liquidator or receiver (in both cases whether provisional or otherwise) is appointed;

(f) if the Licensee is a company and is placed under official management under corporations law or enters a composition or scheme of arrangement;

(g) if the interest the Licensee has under this Licence is taken in execution;

(h) if the Licensee or any person claiming through the Licensee conducts any business from the licensed Premises after the Licensee has committed an act of bankruptcy.

11.2 In the circumstances set out in sub-clause 11.1 the Licensor may end this Licence by:

(a) notifying the Licensee that it is ending the Licence; or

(b) re-entering the Premises, with force if necessary, and ejecting the Licensee and all other persons from the Premises and repossessing them; or

11.3 If the Licensor ends this Licence under this clause, the Licensee shall not be released from liability for any prior breach of this Licence and other remedies available to the Licensor to recover arrears of Rent shall not be prejudiced.

11.4 If the Licensor ends this Licence under this clause or the Licence terminates under clause 10, the Licensor may remove the Licensee’s property and store it at the Licensee’s expense without being liable to the Licensee for trespass, detinue, conversion or negligence. After storing it for at least one month, the Licensor may sell or dispose of the property by auction or private sale. It may apply any proceeds of the auction or sale towards any arrears of Rent or other moneys or towards any loss or damage or towards the payment of storage and other expenses.

12 ACCEPTANCE OF RENT NOT WAIVER

Demand or acceptance of Rent or any other moneys due under this Licence by the Licensor after termination does not operate as a waiver of the termination.

13 HOLDING OVER BY LICENSEE

(a) At the end of the Term of Agreement as specified in Column 2 of Item 18 of Schedule 1, the Licensee shall be entitled with the consent of the Licensor and the Minister to remain in possession of the Premises on the following terms and conditions:

(i) the Licensee shall become a monthly tenant of the Licensor at a monthly rental equivalent to one twelfth proportion of the annual Rent payable at the time of expiration or sooner determination of this Licence;

(ii) the Licensee shall comply with and be bound by the terms and conditions of this Licence insofar as the terms and conditions are applicable, provided that the Licensor may from time to time by notice in writing served on the Licensee direct that any particular condition not apply or be amended in the manner set out in the notice.

(b) The Licensor and the Licensee expressly agree that where any provision of this Licence confers any right, duty, power or obligation on a Party upon the expiration or determination of this Licence or on the Expiry Date and the Licensee is authorised to remain in possession of the Premises pursuant to a consent granted under this clause the emergence of the right, duty, power or obligation shall be postponed until such time as the Licensee ceases to be entitled to possession pursuant to this clause.

(c) The tenancy created by operation of this clause may be determined by the Licensor serving on the Licensee a notice to quit. The notice shall take effect at the expiration of the period of one month from the date of service of the notice or such further period as may be specified in the notice.

(d) The term of the tenancy created by operation of this clause is limited to twelve months from the expiry of the licence.

14 LICENSEE'S RENT AND OUTGOINGS

14.1 Licensee to Pay Rent

The Licensee covenants with the Licensor that the Licensee shall during the whole of the Term of Agreement and any extension of it pay the Rent to the Licensor in accordance with the provisions of this clause without demand free of exchange and without deduction whatsoever.

14.2 Goods and Services Tax

(a) The Parties agree that all payments to be made and other consideration to be provided by the Licensee under the Licence are GST exclusive unless explicitly expressed otherwise. If any payment or consideration to be made or provided by the Licensee to the Licensor is for a taxable supply under the Licence on which the Licensor must pay GST and the Licensor gives the Licensee a tax invoice, the Licensee shall pay to the Licensor an amount equal to the GST payable (“the GST Amount”) by the Licensor for that taxable supply upon receipt of that tax invoice.

(b) The Parties agree that they are respectively liable to meet their own obligations under the GST Law. The GST Amount shall not include any amount incurred in respect of penalty or interest or any other amounts payable by the Licensor as a result of default by the Licensor in complying with the GST Law.

14.3 Rent and Adjusted Rent

The Licensee shall pay to the Licensor on the Commencement Date the Initial Rent and thereafter must pay on each Due Date, Rent in advance adjusted as provided in sub- clauses 14.4 and 14.5.

14.4 Calculation of Annual Rental Adjustment

(a) On each anniversary of the Due Date the Rent will be adjusted in accordance with the following formula:

where:

R represents the Base Annual Rent following adjustment under this clause;

B represents the Base Annual Rent before adjustment under this clause;

C represents the Consumer Price Index Number for the last quarter for which such a number was published before the Due Date; and

D represents the Consumer Price Index Number for the last quarter of the last adjustment of Rent for which such a number was published.

(b) In the event that such index be discontinued or abolished the Minister may at his absolute discretion nominate another Index.

(c) If the reference base for the Consumer Price Index is changed regard shall be had only to Index numbers published in terms of the new reference base or to Index numbers converted to the new reference base in accordance with an arithmetical conversion factor specified by the Australian Statistician.

(d) Any Rent adjusted under this sub-clause shall be adjusted to the nearest whole dollar.

(e) An adjustment of Rent made under this clause shall take effect on its Due Date, notwithstanding than any Rent notice to the Licensee is not issued until after that date specified or referred to in Column 2 of Item 6 of Schedule 1.

14.5 Market Rent Review

(a) In addition to the Rent adjustment provided for in clause 14.4 the Rent may, subject to the following provisions of this clause, be redetermined to an amount that is the Market Rent on that date with effect on and from each Market Rent Review Date by the Licensor;

(b) A redetermination of Rent for the purposes of sub-clause 14.5(a) shall be taken to have been made on the Market Rent Review Date if it is made at any time within the period of six months before and up to six months after that Market Rent Review Date specified or referred to in Column 2 of Item 8 of Schedule 1.

(c) Where the Licensor does not redetermine the Rent as provided for in sub-clause 14.5(a) it may subsequently redetermine the Rent at any time before the next Market Rent Review Date. No succeeding Market Rent Review Date shall be postponed by reason of the operation of this clause.

(d) A redetermination of Rent made under sub-clause 14.5(a) or 14.5(c) shall take effect and be due and payable on the next Due Date following the date of issue of the notice of redetermination (or where the said Due Date and the date of issue of the notice of redetermination are the same, then that date) even if the Licensee wishes to dispute the redetermination.

14.6 Rent Rebate for Charitable or Non Profit Organisations

(a) At the absolute discretion of the Licensor, the Licensor may determine that the Licensee is entitled to a Rent Rebate on the basis that the Licensee is a recognised charitable or non profit organisation;

(b) Subject to sub-clause 14.6(a), the Rent is calculated by subtracting the Rent Rebate from the Base Annual Rent but must exceed the statutory minimum rental applicable to tenures under the Crown Lands Act;

15 CONTINUING OBLIGATION

The obligation of the Licensee to pay Rent is a continuing obligation during the Term of Agreement and any extension of it and shall not abate in whole or in part or be affected by any cause whatsoever.

16 NO REDUCTION IN RENT

Subject to this Licence the Licensee shall not without the written consent of the Licensor by any act, matter or deed or by failure or omission impair, reduce or diminish directly or indirectly the Rent reserved or imposed by this Licence. However, if at any time during the Licence:

(a) some natural disaster or other serious event occurs which is beyond the reasonable control of the Licensee; and

(b) as a result of the damage caused by the natural disaster or other serious event, the Licensee is not able to use the Premises in a reasonable manner,

the Licensee’s obligations to pay Rent shall abate to the extent proportional to the effect on the Licensee’s ability to occupy and use the Premises until the Premises are restored to a condition in which the Licensee is able to conduct the Licensee’s activities and/or occupy the Premises in a reasonable manner.

17 LICENSEE TO PAY RATES

17.1 The Licensee shall when the same become due for payment pay all (or in the first and last year of the Term of Agreement the appropriate proportionate part) rates, taxes, assessments, duties, charges and fees whether municipal, local government, parliamentary or otherwise which are at any time during the currency of this Licence separately assessed and lawfully charged upon, imposed or levied in respect of the Licensee's use or occupation of the Premises to the extent referable to the Licensee's use or occupation of the Premises.

17.2 Where the Licensor requires evidence for such payments the Licensee shall produce such evidence within ten Business Days after the respective due dates for payment.

17.3 In the case where such rates, taxes, duties and fees so covenanted to be paid by the Licensee are not paid when they become due the Licensor may if it thinks fit pay the same and any such sum or sums so paid may be recovered by the Licensor as if such sums were Rent.

18 LICENSEE TO PAY OTHER CHARGES

The Licensee shall pay all other fees, charges and impositions for which it may properly be liable which are imposed by an authorised third party and which are at any time during the Term of Agreement payable in respect of the Premises or on account of the use and occupation of the Premises by the Licensee.

19 LICENSEE TO PAY FOR SERVICES

The Licensee shall as and when the same become due for payment pay to the Licensor or to any other person or body authorised to supply the same all proper charges for gas, electricity, water or other services supplied to the Licensee or consumed in or on the Premises, by the Licensee.

20 LICENSEE TO PAY COST OF WORK

Whenever the Licensee is required under this Licence to do or effect any act, matter or thing then the doing of such act matter or thing shall unless this Licence otherwise provides be at the sole risk, cost and expense of the Licensee.

21 COSTS PAYABLE BY LICENSEE TO LICENSOR

Except when law limits costs being recovered from a Licensor by a Licensee, the Licensee shall pay in full the Licensor's reasonable legal costs, the fees of all consultants and all duties fees, charges and expenses incurred reasonably, properly and in good faith by the Licensor in consequence of or in connection with or incidental to:

(a) the preparation and completion of this Licence;

(b) any variation of this Licence made otherwise than at the request of the Licensor;

(d) any and every failure to comply, breach or default by the Licensee under this Licence;

(e) the exercise or attempted exercise of any right power privilege authority or remedy of the Licensor under or by virtue of this Licence;

(f) the examination of plans, drawings and specifications of any improvement erected or constructed or to be erected or constructed on the Premises by the Licensee and the inspection of it, in this case the costs to be mutually agreed;

(g) any entry, inspection, examination, consultation or the like which discloses a breach by the Licensee of any covenant of this Licence;

(h) the Licensee requiring the Licensor to do any act, matter or thing under this Licence, unless otherwise provided for in this Licence.

22 COSTS PAYABLE BY LICENSOR

The Licensor shall pay its own direct and external consultants costs in relation to any rental redetermination matter without reimbursement from the Licensee.

23 INTEREST ON OVERDUE MONEYS

The Licensee shall pay interest to the Licensor on any moneys due and payable under this Licence or on any judgment in favour of the Licensor in an action arising from this Licence until all outstanding moneys including interest are paid in full. The rate of interest applicable is the rate set by the Licensor’s Bank for the time being as its benchmark rates for overdrafts of one hundred thousand dollars ($100,000.00) or more. Interest shall accrue and be calculated daily.

24 MANNER OF PAYMENT OF RENT AND OTHER MONEYS

The Rent and other moneys payable in accordance with this Licence shall be paid to the address or bank account specified in Column 2 of Item 9, of Schedule 1 or to such other person or at such other address as the Licensor may from time to time direct by notice in writing served on the Licensee.

25 OBLIGATIONS AND RESTRICTIONS RELATING TO PREMISES

25.1 Access

Subject to the sub-clauses hereunder the Licensor confirms that the Licensee shall have unfettered and free access to and from, the Premises at all times, provided however that:

(a) The Licensee shall strictly observe the reasonable directions and requirements of the Licensor at all times regarding the methods and routes of access to the Premises taken by the Licensee;

(b) If the Licensee has shown the position of its intended access in green lines on the attached Plan marked as “Annexure A”. and described the nature of the activity to be conducted on the land at those positions, then in respect of that access, the Licensor shall not require further notice;

(c) The Licensee as far as is practicable, shall be required to use existing access tracks to, from, within and surrounding the Premises;

25.2 Entry by the Public

The Licensee shall allow the public to have right of access over that part of the Premises as specified in Column 2 of Item 20, of Schedule 1 and any such part of the Premises shall be suitably signposted. Otherwise the Licensee may prohibit unauthorised entry to the remainder of the Premises. If required by the Licensor plans showing the areas where public access is authorised and unauthorised shall be displayed in a prominent location at the entrance to the Premises.

25.3 Additions and Alterations

The Licensee shall not make any additions or alterations to the Premises without first obtaining the written consent of the Licensor, the Minister and your local Shire Council in its role as the statutory planning authority. Any additions or alterations consented to by the Licensor and the Minister shall be carried out at the Licensee’s expense.

25.4 Maintenance of Premises and Enclosed Areas

The Licensee shall keep the Premises, and shall ensure that the Premises are kept clean and tidy and in good order and condition, having regard to the extent of the Licensee’s occupation of the Premises under this Licence.

25.5 Licensee to erect barricades etc

Where the Premises or any part of the Premises become to the knowledge of the Licensee (or which ought reasonably to be in the knowledge of the Licensee) unsafe, hazardous or dangerous the Licensee shall forthwith erect such warning signs, fences and barricades as may be necessary until the Premises are rendered safe.

25.6 No residence on Premises

The Licensee shall not reside or permit any other person to reside on the Premises, unless Schedule 2, Special Conditions, permit otherwise.

25.7 Licensee not to remove material

(a) The Licensee shall not mine, remove, extract, dig up or excavate any sand, stone, gravel, clay, loam, shell or similar substance from, on or in the Premises or permit any other person to undertake such action without the prior consent in writing of the Licensor and the Minister and subject to such conditions as the Licensor or the Minister may determine.

(b) Sub-clause 25.7(a) does not apply to any removal, digging up or excavation as may be necessary to construct or undertake any Improvement authorised by or under this Licence provided that any such removal, digging up or excavation is undertaken in accordance with the requirements of that authorisation.

(c) A failure by the Licensee to comply with any condition imposed pursuant to sub-clause 25.7(a) constitutes a failure by the Licensee to comply with a provision or covenant of this Licence.

25.8 Licensee not to burn off

The Licensee shall not carry out any burning off on the Premises except with the prior consent of the Licensor in writing, which consent shall not be unreasonably withheld, and after compliance with the requirements of the Rural Fires Act 1997. Any consent granted in accordance with this clause shall be subject to such reasonable conditions as the Licensor may impose.

25.9 Rodents and Vermin

The Licensee shall take all reasonable precautions to keep the Premises free of rodents, vermin, insects and pests and shall in the event of failing to do so if required by the Licensor employ from time to time a duly certified pest exterminator at cost of the Licensee and as approved by the Licensor whose approval will not be unreasonably withheld. In performing its obligations pursuant to this clause the Licensee and any one acting on the Licensee's behalf shall not use any substance or undertake any activity prohibited by any legislation.

26 ADVERTISING

(a) The Licensee shall not permit to be displayed or placed on the Premises or any part of them any sign, advertisement or other notice without first obtaining the Licensor's written consent other than safety signs, in respect of which the Licensor's consent shall not be required; and

(b) The Licensor may at any time by notice in writing require the Licensee to discontinue to use any piece or mode of advertising to which the Licensor has granted consent under sub-clause 26(a) which in the opinion of the Licensor has ceased to be suitable or has become unsightly or objectionable and the Licensee on receipt of the notice shall comply accordingly.

27 NOTIFICATION OF ACCIDENT

The Licensee shall give to the Licensor prompt notice in writing of any serious accident or serious defect at or in the Premises or any part of them unless the defect or accident is capable of being and is promptly remedied by the Licensee.

28 LICENSEE NOT TO COMMIT NUISANCE ETC

The Licensee shall not:

(a) carry on or permit to be carried on at the Premises any noxious, nuisance or offensive trade or business; or

(b) carry on or permit to be carried on at the Premises any act, matter or thing which results in nuisance damage or disturbance to the Licensor or owners or occupiers of adjoining or neighbouring lands or buildings; or

29 HAZARDOUS SUBSTANCES

The Licensee shall not keep any Hazardous Substance on the Premises without prior consent of the Licensor, which consent shall not be unreasonably withheld.

30 RELICS

(a) Unless authorised to do so by a permit under section 87 or a consent under section 90 of the National Parks and Wildlife Act 1974 and subject to observance and compliance with any conditions imposed on the grant of such permit or consent the Licensee shall not knowingly disturb, destroy, deface or damage any aboriginal relic or place or other item of archaeological significance within the Premises and shall take every reasonable precaution in drilling excavating or carrying out other operations or works in the Premises against any such disturbance, destruction, defacement or damage.

(b) If the Licensee becomes aware of any aboriginal relic or place or other item of archaeological significance within the Premises the Licensee shall within 24 hours notify the Licensor and the Director-General of the Department of Environment and Conservation of the existence of such relic place or item.

(c) The Licensee shall not continue any operations or works on the Premises likely to interfere with or disturb any relic, place or item referred to in sub- clause 30(b) without the approval of the Director-General of the Department of Environment and Conservation and the Licensee shall observe and comply with all reasonable requirements of the said Director-General in relation to carrying out the operations or works.

31 ARTEFACTS

All fossils, artefacts, coins, articles of value, articles of antiquity, structure and other remains or things of geological historical or archaeological interest discovered on or under the surface of the Premises shall be deemed to be the absolute property of the Licensor and the Licensee shall as authorised by the Licensor watch or examine any excavations and the Licensee shall take all reasonable precautions to prevent such articles or things being removed or damaged and shall as soon as practicable after discovery thereof notify the Licensor of such discovery and carry out the Licensor's orders as to the delivery up to or disposal of such articles or things at the Licensor's expense.

32 OWNERSHIP AND REMOVAL OF TENANT FIXTURES AND IMPROVEMENTS

(a) During the Term of Agreement and any extension of it, ownership of Tenant Fixtures vests in the Licensee. Notwithstanding anything contained in this Licence, so long as any Rent or other moneys are due by the Licensee to the Licensor or if the Licensee has committed any breach of this Licence which has not been made good or remedied and whether the Licensee is still in possession or not, the Licensee shall not be entitled to remove any of the Tenant Fixtures, fittings or equipment from the Licensed property.

(b) Upon expiry of the Licence all Improvements undertaken by the Licensee become the property of the Licensor.

33 GENERAL REQUIREMENT TO REPAIR

Without prejudice to the specific obligations contained in this Licence the Licensee shall to the satisfaction of the Licensor at all times keep the Premises in good repair and properly maintained in all respects.

34 BREAKAGES

The Licensee shall immediately at the Licensee's expense make good any breakage defect or damage to the Premises (including but not limited to broken glass) or to any adjoining premises or to any facility or appurtenance of the Licensor occasioned by want of care, misuse or abuse on the part of the Licensee or the Licensor's other Licensees occupants occupiers or other persons claiming through or under the Licensee or otherwise occasioned by any breach or default of the Licensee hereunder.

35 INDEMNITIES AND INSURANCE

35.1 Indemnity for use of Premises

(a) The Licensee shall indemnify and keep indemnified the Licensor from and against all actions, suits, claims, demands, proceedings, losses, damages, compensation, sums of money, costs, legal costs, charges and expenses whatsoever to which the Licensor shall or may be or become liable for or in respect of the Licensee’s occupation operation and use of the Premises or for or in respect of all losses, damages, accidents or injuries of whatsoever nature or kind and howsoever sustained or occasioned (and whether to any property or to any person or resulting in the destruction of any property or the death of any person or not) at or upon the Premises or originating on the Premises although occurring or sustained outside the same except to the extent that any such claims and demands:

(i) arise from or are contributed to by the negligence or wilful act or omission on the part of the Licensor; or

(ii) arise from the occupation, operation or use of the Premises by any other occupier, or the acts of any person who has access to the Premises with the consent of another occupier, and the Licensor is adequately indemnified by that other occupier in respect of the relevant claim or demand, and the Licensor shall use its reasonable endeavours to ensure that an indemnity in this form is contained in any agreement with any other occupier of the Premises.

35.2 Indemnity Continues After Expiration of Licence

The obligations of the Licensee under this clause continue after the expiration or other determination of this Licence in respect of any act, deed, matter or thing happening before such expiration or determination for the period limited by the Statute of Limitations.

35.3 Exclusion of Consequential Loss

Despite any other provision of this Licence, both Parties exclude, and agree that they shall have no rights against the other for liability for consequential or indirect loss arising out of this Licence including (without limitation) in respect of loss of profits or loss of business. This clause does not apply in respect of wilful acts by either Party.

36 INSURANCE - PUBLIC RISK

The Licensee shall effect and maintain with a reputable and solvent insurer with respect to the Premises and the activities carried on in the Premises public risk insurance for an amount not less than the amount set out in Column 2 of Item 12, of Schedule 1 or such other amount as the Licensor may from time to time reasonably require as the amount payable in respect of liability arising out of any one single accident or event. The Licensor acknowledges that the Licensee may effect the public risk insurance pursuant to an insurance policy which is not specific as to the location of risk.

37 PROVISIONS RE POLICIES

(a) All insurance policies required to be effected by the Licensee pursuant to this Licence are specified in Schedule 2, Special Conditions and shall be in place prior to the Licensee occupying the Premises.

(b) The Licensee shall produce to the Licensor, once per calendar year or once per period of insurance (whichever first occurs), a certificate of insurance and/or a certificate of currency in respect of the insurance policies required to be effected by the Licensee pursuant to this Licence.

(c) The Licensee shall not at any time during the Term of Agreement do or bring upon the Premises anything which it ought reasonably believe may render void or voidable any policy of insurance. If the Licensee brings anything onto the Premises whereby the rate of premium on such insurance is liable to be increased, the Licensee shall obtain insurance cover for such increased risk and pay all additional premiums on the Premises required on account of the additional risk caused by the use to which the Premises are put by the Licensee.

(d) The Licensee shall use all reasonable endeavours to ensure that full, true and particular information is given to the office or company with which the said insurances are effected of all matters and things the non-disclosure of which might in any way prejudice or affect any such policy or policies of insurance or the payment of all or any moneys there under.

38 INDEMNITY FOR NON-COMPLIANCE WITH LEGISLATION

The Licensee shall indemnify and keep indemnified the Licensor from and against any and all actions, suits, claims, demands, proceedings, losses, damages, compensation, sums of money, costs, legal costs, charges and expenses whatsoever arising from the non-compliance by the Licensee with any New South Wales or Commonwealth legislation that may apply to the Licensee’s use and occupation of the site and access thereto and the Licensee’s operation of their business from the site and access thereto.

This clause shall not merge on the expiration or other determination of this Licence in respect of any act, deed, matter or thing happening before such expiration or determination.

39 INDEMNITY FOR BREACH OF ENVIRONMENTAL LAW

Without prejudice to any other indemnity granted by this Licence, the Licensee shall indemnify and keep the Licensor indemnified against all claims whatsoever arising from a breach by the Licensee of any Environmental Law which breach is in relation to the Premises. This clause shall not merge on expiration or other determination of this Licence in respect of any act, deed, matter or thing happening before such expiration or determination.

40 NO LIABILITY FOR FAILURE OF SERVICES

The Licensor shall not be under any liability for any loss, injury or damage sustained by the Licensee or any other person at any time as a result of or arising in any way out of the failure of the electricity, telephones, gas, water supply, sewerage, drainage or any other services or facilities provided by the Licensor or enjoyed by the Licensee in conjunction with the Premises or this Licence provided that such failure is not due to the negligent or wilful act or omission of the Licensor its servants or agents.

41 LICENSEE NOT TO IMPOSE LIABILITY ON LICENSOR

Subject to any other provision of this Licence, the Licensee shall not without the written consent of the Licensor by any act, matter or deed or by failure or omission cause or permit to be imposed on the Licensor any liability of the Licensee under or by virtue of this Licence even though the Licensee is entitled to do so under any law present or future or otherwise.

42 RELEASE OF LICENSOR FROM LIABILITY

(a) The Licensee shall occupy, use and keep the Premises at the risk of the Licensee and hereby releases to the full extent permitted by law the Licensor from all claims and demands of every kind resulting from any accident, damage or injury occurring therein but excluding such claims and demands to the extent that such claims and demands arise out of the negligent or wilful acts omissions or default of the Licensor and the Licensor shall have no responsibility or liability for any loss of or damage to fixtures and/or personal property of the Licensee or any agent or servant of the Licensee or of any member of the public whilst in or upon the Premises but excluding such loss or damage claims and demands to the extent that such loss or damage, claims and demands arise out of the negligent acts or wilful omissions or default of the Licensor.

(b) The obligations of the Licensee under this clause shall continue after the expiration or other determination of this Licence in respect of any act, deed, matter or thing happening before such expiration or determination for which the Licensee is responsible. Such obligation is to be governed by the Statute of Limitations.

43 LICENSOR’S WARRANTIES AND COVENANTS

43.1 Hazardous Chemicals

The Licensor warrants that it has not received any notice pursuant to the Environmentally Hazardous Chemical Act, 1985 (NSW).

44 LICENSOR'S POWERS AND FUNCTIONS

44.1 Approval by Licensor

(a) In any case where pursuant to this Licence the doing or executing of any act, matter or thing by the Licensee is dependent upon the approval or consent of the Licensor such approval or consent shall not be effective unless given in writing and may be given or withheld (unless the context otherwise requires) by the Licensor and may be given subject to such conditions as the Licensor may determine unless otherwise provided in this Licence provided such consent or approval is not unreasonably withheld or such terms and conditions are not unreasonable.

(b) Any failure by the Licensee to comply with a condition imposed by the Licensor pursuant to sub-clause 44.1(a) constitutes a failure by the Licensee to comply with a condition of this Licence.

45 APPLICATION OF CERTAIN STATE AND COMMONWEALTH LAWS

45.1 Proportionate Liability

Part 4 of the Civil Liability Act 2002 (NSW) does not apply to this Licence.

45.2 Licensee to Comply with all Commonwealth and NSW State Laws

(a) The Licensee shall comply with the requirements of all Statutes, regulations or by-laws and requirements of all relevant public and local authorities in so far as they apply in relation to the use and occupation of the Premises to the extent to which the Licensee is bound at law to comply with the same and nothing in this Licence affects this obligation.

(b) The Licensee shall forthwith on being served with a notice by the Licensor comply with any notice or direction served on the Licensor by a competent authority relating to the destruction of noxious animals or plants or pests or the carrying out of repairs alterations or works on or to the Premises.

45.3 Licensee to Comply with Environmental Laws

In relation to its use of the Premises, the Licensee shall, during the Term of Agreement, and in relation to the Premises:

(a) comply with relevant Environmental Law;

(b) use its best endeavours to prevent a breach of any Environmental Law;

(d) provide to the Licensor as soon as reasonably practicable details of notices received by or proceedings commenced against the Licensee pursuant to an Environmental Law:

(i) relating to a breach or alleged breach by the Licensee of an Environmental Law; or

(ii) requiring the Licensee to carry out works to decrease the affectation of the Premises by any Hazardous Substance.

45.4 Licensee’s Failure to Comply with Statutory Requirements

Where the Licensee breaches any law in relation to its use of the Premises it is taken to breach a condition of the Licence, provided that:

(a) the Licensee has been found guilty of the breach, and

(b) the Licensor determines that the breach warrants the termination of the Licence.

46 NOTICES

46.1 Service of Notice on Licensee

Any notice served by the Licensor on the Licensee must be in writing and shall be sufficiently served if:

(a) served personally or left addressed to the Licensee at the address stated in Column 2 of Item 10, of Schedule 1 or such other address as the Licensee notifies in writing to the Licensor; or

(b) sent by email to the Licensee’s email address stated in Column 2 of Item 10, of Schedule 1 or such other address as the Licensee notifies in writing to the Licensor;

(c) sent by facsimile to the Licensee’s facsimile number stated in Column 2 of Item 10, of Schedule 1 or such other number as the Licensee notifies in writing to the Licensor; or

(d) forwarded by prepaid security mail addressed to the Licensee at the address stated in Column 2 of Item 10, of Schedule 1;

and every such notice must also be served on the Licensee’s solicitors as they may be nominated from time to time, or such other address or facsimile number as the Licensee’s solicitors notify in writing to the Licensor, by any methods identified in subclauses 46.1 (a), (b) and (c).

46.2 Service of Notice on Licensor

Any notice served by the Licensee on the Licensor must be in writing and shall be sufficiently served if:

(a) served personally or left addressed to the Licensor at the address stated in Column 2 of Item 11, of Schedule 1 or such other address as the Licensor notifies in writing to the Licensee; or

(b) sent by email to the Licensor’s email address stated in Column 2 of Item 11, of Schedule 1 or such other address as the Licensor notifies in writing to the Licensee;

(c) sent by facsimile to the Licensor’s facsimile number stated in Column 2 of Item 11, of Schedule 1 or such other number as the Licensor notifies in writing to the Licensee; or

(d) forwarded by prepaid security mail addressed to the Licensor at the address stated in Column 2 of Item 11, of Schedule 1

and every such notice must also be served on the Licensor’s solicitors, as they may be nominated from time to time, or such other address or facsimile number as the Licensor’s solicitors notify in writing to the Licensee, by any methods identified in subclauses 46.2 (a), (b) and (c).

46.3 Notices

(a) Any notice served by the Licensor or the Licensee under this Licence shall be effective if signed by a director or secretary or the solicitors for the Party giving the notice or any other person or persons nominated in writing from time to time respectively by the Licensor or by the Licensee to the other.

(b) Any notice sent by prepaid security mail shall be deemed to be served at the expiration of 2 Business Days after the date of posting.

(c) Any notice sent by facsimile machine shall be deemed to be served on the first Business Day after the date of transmission (provided that the sending Party receives a facsimile machine verification report indicating that the notice has been transmitted).

47 PROCEDURE - DISPUTE RESOLUTION

(a) In the event that the Licensor and the Licensee are in dispute regarding any matter relating to or arising under this Licence or in respect of any approvals or consents to be granted by the Licensor (except those approvals or consents where the Licensor has an obligation to act reasonably) to the Licensee hereunder or where it is acting in its statutory capacity, then either the Licensor or the Licensee may give notice and particulars of such dispute to the other Party.

(b) Where a notice of dispute is served pursuant to this clause the Parties agree to enter into informal negotiations to try and resolve the dispute in good faith and in an amicable manner.

(c) If the dispute is not resolved informally within 21 days of service of written notification, the Parties may confer with a mutually agreed third party whose role will be to assist in the resolution of the dispute by mediation or expert appraisal of the dispute. The Parties agree to provide all information and assistance reasonably requested by such third party, including access to any accounting or other business records relating to or arising out of the Licence.

(d) A third party appointed in accordance with this clause may decide in which proportions any fees will be borne by the respective Parties. In the absence of any such decision by the third party fees shall be borne equally by the Parties.

(e) Neither Party shall be entitled to commence or maintain any proceedings in any court or tribunal until negotiations or mediations have taken place pursuant to this clause except where either Party seeks urgent interlocutory relief.

(f) Either Party may at any time bring negotiations or mediation to an end by serving upon the other Party written notice stating that the dispute has failed to be resolved. Upon service of such notice both Parties shall be entitled to pursue any legal remedies available to them in relation to the dispute. This sub-clause does not in any way limit a mediator's power to apportion fees under sub-clause 47(d).

(g) Notwithstanding the existence of a dispute under this or any other clause of this Licence the Parties must, unless acting in accordance with an express provision of this Licence, continue to perform their obligations under this Licence.

MISCELLANEOUS

48 NO MORATORIUM

Any present or future legislation which operates to vary obligations between the Licensee and the Licensor, except to the extent that such legislation is expressly accepted to apply to this Licence or that its exclusion is prohibited, is excluded from this Licence.

49 NO WAIVER

No waiver by a Party of any breach of any covenant obligation or provision in this Licence either express or implied shall operate as a waiver of another breach of the same or of any other covenant obligation or provision in this Licence contained or implied. None of the provisions of this Licence shall be taken either at law or in equity to have been varied waived discharged or released by a Party unless by express consent in writing.

50 NO MERGER

Nothing in this Licence merges, postpones, extinguishes lessens or otherwise prejudicially affects the rights and remedies of the Parties under this Licence or under any other agreement.

51 COUNTERPARTS

(a) A Party may execute this Licence by signing any counterpart.

(b) All counterparts constitute one document when taken together.

52 CONTACT PERSON

The Licensor and the Licensee each must nominate a person to contact about matters arising under this Licence. The person so nominated is the person referred to in Column 2 of Items 13 and 14, of Schedule 1 or such other person as the Licensor nominates in writing to the Licensee and the Licensee nominates in writing to the Licensor from time to time.

53 APPLICABLE LAW

This Licence shall be construed and interpreted in accordance with the law of New South Wales.

54 NO HOLDING OUT

The Licensee shall not in connection with the Premises or otherwise directly or indirectly hold out or not permit to be held out to any member of the public any statement, act, deed, matter or thing indicating that the Premises or the business conducted or operated thereon or any parts or parts thereof are or is being carried on or managed or supervised by the Licensor nor shall the Licensee act as or represent itself to be the servant or agent of the Licensor.

55 WHOLE AGREEMENT

(a) The provisions contained in this Licence expressly or by statutory implication cover and comprise the whole of the agreement between the Parties.

(b) No further or other provisions whether in respect of the Premises or otherwise shall be deemed to be implied in this Licence or to arise between the Parties hereto by way of collateral or other agreement by reason or any promise representation warranty or undertaking given or made by any Party hereto to another on or prior to the execution of this Licence.

56 SPECIAL CONDITIONS

The Special Conditions set out in Schedule 2 apply and form part of this Licence.

BYRON SHIRE COUNCIL

Staff Reports - Corporate and Community Services 4.2

Report No. 4.2 Commencement of the Crown Lands Management Act 2016 (NSW)

Directorate: Corporate and Community Services

Report Author: Paula Telford, Leasing and Licensing Coordinator

Ralph James, Legal Counsel

File No: I2018/703

Theme: Corporate Management

Governance Services

Summary:

The Crown Lands Management Act 2016 (NSW) (‘the new Act’) represents landmark reforms to the management of Crown Land in New South Wales. The new Act is the result of four years of consultation and engagement by the NSW Government and is expected to commence on 1 July 2018 although no formal announcement has been yet made.

On 21 March 2018 a joint briefing was held by the Office of the Local Government and the Department of Industry Crown Lands & Water Division on the new Act. This report provides a summary of that briefing session and includes A Briefing Pack for Councillors attachment 1.

The most significant change introduced by the new Act is that Council will manage Crown land under its control as public land under the Local Government Act. This change triggers the requirement for Council to adopt Plans of Management for all Crown land it will manage as community land and have those Plans in place within three years from commencement of the new Act. Resourcing implications of this requirement are noted by this report.

RECOMMENDATION:

That Council, as a Reserve Trust Manager, note the pending commencement of the Crown Lands Management Act 2016 (NSW) and the information contained in the Briefing Pack for Councillors.

Attachments:

1 OLG & Dept Industry Crown Lands & Water Division - Briefing Pack for Councilllors April 2018 on new Crown Lands Management Act 2016., E2018/31456 , page 41 ⇩

Report

Background:

The Crown Lands Management Act 2016 (NSW) (‘the new Act’) reforms the way Crown land will be management in New South Wales. The reforms commenced in 2012 by the releasing of a White Paper by the NSW Government. In response to over 600 submissions received, the NSW Government determined that:

i. the NSW Government would retain state significant Crown land;

ii. Crown land with mostly local values to be owned or managed by local Councils; and

iii. a new consolidated Act is required.

The new Act gives Council significantly more responsibility and autonomy in the care and control of Crown land it currently manages.

Information briefing session:

On 21 March 2018 a joint briefing was held by the Office of the Local Government (‘OLG’) and the Department of Industry Crown Lands & Water Division (‘the Crown’) on the new Act. A Briefing Pack for Councillors is attached to this report.

A summary of relevant points from the briefing are provided below:

1. The new Act will commence in mid 2018 with a date yet to be formally released. It is widely expected the new Act will commence on 1 July 2018.

2. The new Act removes Reserve Trusts by ministerial appointment of Council as a Crown Land Manager.

3. On commencement of the new Act, Council will become a Crown Land Manager for all Crown land it previously managed as a Reserve Trust Manager.

4. As a Crown Land Manager, Council will manage the Crown land as public land under the Local Government Act 1993 (NSW), (‘LGA’).

5. In limited circumstances, and subject to Minister’s consent, Crown land will be managed as Operational land. Those circumstances include:

a. where the current use of the land is inconsistent with objects of community land under the LGA for example a waste management site; or

b. where the current use of the land requires a longer-term lease than is available under the LGA for example a cemetery or caravan park used for residential housing.

6. Crown land whether managed as community or operational land remains vested in the Crown until Council undergoes a Land Negotiation Program with the Crown, whereby the Crown has promised of no forced transfers.

7. As a Crown Land Manager, Council must as soon as practical after commencement of the new Act, notify the Minister in writing, of the category it has assigned to public land to be managed as community land under the LGA; and

a. within 3 years have prepared Plans of Management (‘POM’s’) for the Crown land; by creating or amending an existing POM without the need for public consultation; and

b. the POM must be informed by the reserve purpose through categorisation; and

c. the OLG will be releasing a template POM for Council to customise; and

d. financial assistance will be available from the OLG and distributed on an as needs basis or via the existing Public Reserve Management Funds.

8. Council must appoint a Native Title Manager, who is accredited by Crown lands, to manage and oversee dealings and ensure compliance with Native Title obligations. Currently two staff members in the Corporate and Community Services Directorate are accredited.

9. Existing leases and licences tenures will continue in force for the term of the grant. In the period before a POM has been created for the Crown land subject to a new tenure, Council may only grant;

a. short-term licences for purposes set out in the Act, or

b. renew existing leases with no additional permitted users; or

c. grant a new lease only if a lease was in force immediately before commencement of the new Act and the lease provides for no additional permitted uses.

10. Existing Crown Land POM’s will remain valid until either a new POM is created, or 3-years has expired or the land is transferred to Council in fee simple.

11. Closing of Crown roads will change under the new Act with information packs to be released soon. Unconstructed crown roads upon closure the land will vest in the Crown, regardless of Council handling the road closure process.

The OLG will be releasing further guidelines and circulars and will conduct more training closer to introduction of the Act. The OLG encourages Council land managers to sign up to eNewsletter and Facebook site.

Reserve Trust dissolution:

The OLG has provided Council with the following advice, with more detailed guidelines to be released shortly:.

· Under the new Act, the Minister, by written appointment, will appoint Council as a Crown Land Manager for certain Crown land it currently manages. That appointment will remove Council as a Reserve Trust manager over the land and will set out the role and function as a Crown Land Manager; and

· Council is not required to dissolve the Reserve Trust Committee but is required to change the Committee’s name; and

· Council must review how the Committee was formed, its constitution and attached delegations to reference the new Act and refer to Council as a Crown Land Manager.

Plans of management:

Council must prepare Plans of Management for all Crown land it will manage as community land under the Local Government Act. In preparing Plans of Management Council must first categorise one or more purposes of the land to be managed as community land. The categorisation must reflect the original reserved purpose of the land with any additional purposes to be endorsed by Ministerial consent.

Council currently manages 19 leases and licences on Crown lands that Council is a Reserve Trust Manager. Council will be required to adopt Plans of Management within the next three years that provide for future leases and licences over each land. Council also manages 13 sub-leases and sub-licences on Crown Lands.

It is difficult to estimate the value of resources that will be required to prepare Plans of Management for all the Crown land that Council will manage as a Crown Land Manager. The Department of Industry Crown Lands and Water Division will provide Council with a complete listing of Crown land Council currently managers after commencement of the new Act. That listing will include the land description, location and the gazetted purpose.

Council is permitted to include Crown land it will manage as a Crown Land Manager into existing generic Plans of Management when relevant, however some lands will require new specific Plan of Management for the land for example surf clubs and pre-schools.

Financial Implications

The provisions and implications of the new Act were reported to the Executive Team on 18 April 2018 which directed that staff undertake a preliminary review of Crown Reserves and transfers, to inform allocation of resources necessary to undertake the identification and assessment tasks required by point 7 under the heading Information briefing session above.

Statutory and Policy Compliance Implications

Local Government Act 1993 (NSW)

s36 Preparation of Draft Plans of Management for Community Land

(1) A council must prepare a draft plan of management for community land.

(2) A draft plan of management may apply to one or more areas of community land, except as provided by this Division.

(3) A plan of management for community land must identify the following:

(a) the category of the land,

(b) the objectives and performance targets of the plan with respect to the land,

(d) the manner in which the council proposes to assess its performance with respect to the plan's objectives and performance targets,

and may require the prior approval of the council to the carrying out of any specified activity on the land.

(3A) A plan of management that applies to just one area of community land:

(a) must include a description of:

(i) the condition of the land, and of any buildings or other improvements on the land, as at the date of adoption of the plan of management, and

(ii) the use of the land and any such buildings or improvements as at that date, and

(b) must:

(i) specify the purposes for which the land, and any such buildings or improvements, will be permitted to be used, and

(ii) specify the purposes for which any further development of the land will be permitted, whether under lease or licence or otherwise, and

(iii) describe the scale and intensity of any such permitted use or development.

(4) For the purposes of this section, land is to be categorised as one or more of the following:

(a) a natural area,

(b) a sportsground,

(d) an area of cultural significance,

(e) general community use.

(5) Land that is categorised as a natural area is to be further categorised as one or more of the following:

(a) bushland,

(b) wetland,

(d) watercourse,

(e) foreshore,

(f) a category prescribed by the regulations.

(6) The regulations may make provision for or with respect to the categorisation of community land under this section, including:

(a) defining any expression used in subsection (4) or (5), and

(b) prescribing guidelines for the categorisation of community land and the effect of any guidelines so prescribed.

Crown Lands Management Act 2016 (NSW)

s3.3 Minister may Appoint Crown Land Managers

(1) The Minister may, by written instrument (an
"appointment instrument" ), appoint one or more qualified persons to be Crown land managers for specified dedicated or reserved Crown land.

(2) Each of the following is a
"qualified person" for appointment as a Crown land manager:

(a) a local council,

(b) a Local Aboriginal Land Council under the Aboriginal Land Rights Act 1983 ,

(d) a statutory land manager,

(e) the Ministerial Corporation,

(f) an association under the Associations Incorporation Act 2009 ,

(g) a company under the Corporations Act 2001 of the Commonwealth,

(h) any other body corporate or corporation constituted by or under another Act,

(i) the head of a government sector agency.

(3) A Crown land manager may be appointed to manage more than one area of dedicated or reserved Crown land at a time.

(4) A corporation constituted by or under another Act appointed as a Crown land manager is authorised to accept the appointment, and to exercise all the functions of a Crown land manager, despite anything in the Act.

(5) A local council may only be appointed as the Crown land manager of dedicated or reserved Crown land that is wholly or partly within the local government area of another local council with the consent of the other council.

(6) The appointment of a qualified person as a Crown land manager does not make the person a statutory body representing the Crown if the person is not already one.

BYRON SHIRE COUNCIL

Staff Reports - Infrastructure Services 4.3 - Attachment 1

Report No. 1.

Acquisition part Crown public road R755687 Main Arm proposed extension to Main Arm Rural Fire Brigade Station

Director: Infrastructure Services

Corporate and Community Services

Report Author: Leslie Beardmore, Leasing and Licensing Coordinator

Tony Nash, Manager Works

File No: #E2013/73811

Theme:

Emergency Services

Property, Procurements and Contract Services

Summary:

NSW Rural Fire Service is proposing an extension to the Main Arm Rural Fire Brigade Station to accommodate a new Category 1 tanker. The Station is located on Council owned Community Land.

The proposed extension requires an encroachment on the adjacent eastern boundary onto Crown Reserve R755687 – a Crown public road.

Correspondence with NSW Trade and Investment Crown Lands Division, as landowners of R755687, confirms that Council should acquire the affected part of the Crown public road for the essential public purpose of emergency services.

The proposed compulsory acquisition is provided for in the Roads Act 1993 and will be processed in accordance with the Land Acquisition (Just Terms Compensation) Act 1991. It will automatically close the affected area of the Crown public road in accordance with the Roads Act 1993.

The first steps in the acquisition process were to have the proposed acquisition area surveyed and a valuation that references the appropriate clauses of that Act. The survey and valuation have been undertaken.

This report seeks Council’s approval to proceed with the land acquisition.

RECOMMENDATION:

1. That Council proceed compulsory acquisition in accordance with the Land Acquisition (Just Terms Compensation) Act and Section 177 of the Roads Act 1993, for part Crown public road part Reserve 755687 being part Lot 447 DP 257132 ( including all mines and minerals in the land) as identified in the draft plan at Annexure 4(c) #E2013/67385, subject to:

a) agreement being reached to the satisfaction of both Council and Crown Lands on the amount of compensation payable;

b) consent from Crown Lands for the acquisition; and

c) approval from the Minister for Local Government and/or Governor for the acquisition.

2. That Council authorise the General Manager to take the necessary steps to proceed with the land acquisition, including but not limited to:

a) negotiate with Crown Lands regarding amount of compensation payable to reach agreement to the satisfaction of both Council and Crown Lands;

b) seek consent from Crown Lands for the acquisition;

b) apply to the Minister for Local Government to approve the giving of a proposed acquisition notice and/or make recommendation to the Governor to publish an acquisition notice by gazettal;

c) affix the Council Seal to acquisition and land title documentation for the acquisition of part Lot 447 DP 257132, in accordance with Regulation 400 of the Local Government (General) Regulations 2005.

3. That upon acquisition, Council resolve to classify the land as Community Land categorised as General Community Use – Community Facilities for the essential public purpose of emergency services.

Attachments:

·... Proposed extension #S2013/8477 [4 pages]..................................................................... Annexure 4(a)

·... Letter from Crown Lands Division #S2013/9828 [1 page]................................................... Annexure 4(b)

·... Draft plan #E2013/67385 [1 page].................................................................................... Annexure 4(c)

· Assessment of compensation #E2013/73728 [47 pages]................................................... Annexure 4(d)

Annexure 4(d): Due to the size of this document it has been provided on the Councillors' Agenda CD only; an electronic copy can be viewed on Council's website and at community access points around the Shire.

Report

Land Information

Proposed land to be acquired:

Description: Part Lot 447 DP 257132 Crown public road (Reserve 755687)

Address: Main Arm Road, Main Arm

Owner: State of NSW (Crown Lands)

Name of Trust: not applicable

Trust Manager: not applicable

Purpose: Crown public road

Existing land upon which Rural Fire Brigade Station is located:

Description: Lot 1 DP 610487

Address: Main Arm Road, Main Arm

Owner: Byron Shire Council

Classification: Community Land

Category: General Community Use – Community Facilities

Zoning: 1(a) hatched – general rural zone

POM: Generic Plan of Management for Community Land Categorised as General Community Use – Community Facilities #653083 adopted 24 February 2005

NSW Rural Fire Service holds a Service Level Agreement with Council for the use of Council owned Community Land at Main Arm Road, Main Arm upon which the Main Arm Rural Fire Brigade Station is located.

NSW Rural Fire Service is proposing an extension to the Main Arm Rural Fire Brigade Station to accommodate a new Category 1 tanker. Their proposal is outlined at Annexure 4(a). The building extension will be funded by RFS and the Main Arm volunteer RFS brigade.

The proposed extension requires an encroachment area of approximately 104m² (approximately 8 metres wide) on the adjacent eastern boundary onto Crown public road – part Reserve R755687.

Since early 2011 NSW Rural Fire Service has been in discussions with Council staff and NSW Trade and Investment Crown Lands Division (“Crown Lands”) to allow the NSW Rural Fire Service to expand the existing Main Arm Rural Fire Brigade Station.

Advice to Council from Crown Lands in September 2012 stated that Crown Lands considered it appropriate for Council to apply to close and purchase the affected part of the Crown public road.

Since that time, Crown Lands have reviewed their advice and in a letter dated 1 August 2013 (Annexure 4(b)) they advised that the best way to proceed at this time is for Council to acquire the affected part of the Crown public road for the essential public purpose of emergency services. This method has the advantage of timeliness, and automatically closes the affected area of the Crown public road.

The proposed compulsory acquisition will be in accordance with the Land Acquisition (Just Terms Compensation) Act 1991 and will automatically close the affected area of the Crown public road in accordance with the Roads Act 1993.

The first steps in the acquisition process were to have the proposed acquisition area surveyed and a valuation referencing the appropriate clauses of the Land Acquisition (Just Terms Compensation) Act 1991.

Staff commissioned a draft plan and valuation (assessment of compensation) and these are attached at Annexure 4(c) and 4(d) respectively. Making an allowance for a boundary buffer, the proposed land acquisition would be approximately 10 metres wide and 13 metres deep with an area of 129.7m².

The proposed acquisition area is 129.7m² of vacant land (with the exception of post and wire fencing to the Main Arm Road boundary).

The assessment of compensation has been determined on the basis that Council will attend to and bear the costs of acquisition.

The assessment of compensation should also be re-assessed upon becoming more than 3 months old.

When making an acquisition application to the Minister for Local Government, Council needs to decide what it wants to do about mines and minerals in the land and this must be clearly stated in its application.

The proposed land to be acquired is an unformed Crown Public Road. Council is generally entitled to all minerals in the land acquired.

A formal search of the Register of Native Title Claims and National Native Title Register has been carried out for the Byron Shire Council Local Government Area. The search results provided by the National Native Title Tribunal on 10 December 2013 show that the proposed land acquisition is not subject any claim.

Financial Implications

Costs to conduct the survey and valuation totalling $2,123.00 (including GST) have been met by the existing 2013/14 Budget.

There will be a further cost to have a plan of subdivision prepared by the surveyor to accompany the application for compulsory acquisition to the Minister for Local Government and (subject to Gazettal) registration at Land and Property Information, and related land rationalisation costs for lot amalgamation etc to the estimated value of $3,000.

The assessment of compensation under Section 55 of the Land Acquisition (Just Terms Compensation) Act 1991 has been assessed at $3,500.00 (including GST) plus disturbance.

Estimated additional funding of $6,500 will be funded by Council from the Emergency Services financial sub programme within Infrastructure Services.

As already stated the costs of the building extension will be funded by RFS and the Main Arm volunteer RFS brigade.

Statutory and Policy Compliance Implications

Department of Local Government Guidelines for Compulsory Acquisition 2006

Land Acquisition (Just Terms Compensation) Act 1991 No 22

5 Acquisition of land to which Act applies

(1) This Act applies to the acquisition of land (by agreement or compulsory process) by an authority of the State which is authorised to acquire the land by compulsory process.

(2) This Act does not apply to any such acquisition if the land is available for public sale and the land is acquired by agreement.

(3) Land is available for public sale if:

(a) the land is advertised by the owner as being available for sale, or

(b) the land is listed by the owner with a real estate agent as being available for sale, or

29 Acquisition of Crown land

(1) Land may be compulsorily acquired by an authority of the State under this Act even though it is Crown land.

(2) If Crown land is subject to a dedication or reservation that (by virtue of any Act) cannot be removed except by an Act, that land may not be compulsorily acquired. However, this prohibition does not apply if the dedication or reservation is not affected by the compulsory acquisition of the land.

(3) Nothing in this Act affects the acquisition by agreement of Crown land by an authority of the State.

(4) The provisions of Division 1 (Pre-acquisition procedures) and Part 3 (Compensation for acquisition of land) do not apply to the compulsory acquisition of Crown land if the owners of the land have agreed on all relevant matters concerning the compulsory acquisition and the compensation (if any) to be paid for the acquisition.

38 Compensation entitlement if land (not available for public sale) acquired by agreement

An authority of the State is to take into account, in connection with any proposed acquisition by agreement of land not available for public sale, the same matters as are required to be taken into account under this Part in determining the compensation payable for an acquisition by compulsory process.

54 Entitlement to just compensation

(1) The amount of compensation to which a person is entitled under this Part is such amount as, having regard to all relevant matters under this Part, will justly compensate the person for the acquisition of the land.

(2) If the compensation that is payable under this Part to a person from whom native title rights and interests in relation to land have been acquired does not amount to compensation on just terms within the meaning of the Commonwealth Native Title Act, the person concerned is entitled to such additional compensation as is necessary to ensure that the compensation is paid on that basis.

55 Relevant matters to be considered in determining amount of compensation

In determining the amount of compensation to which a person is entitled, regard must be had to the following matters only (as assessed in accordance with this Division):

(a) the market value of the land on the date of its acquisition,

(b) any special value of the land to the person on the date of its acquisition,

(d) any loss attributable to disturbance,

(e) solatium,

(f) any increase or decrease in the value of any other land of the person at the date of acquisition which adjoins or is severed from the acquired land by reason of the carrying out of, or the proposal to carry out, the public purpose for which the land was acquired.

56 Market value

(1) In this Act:

market value of land at any time means the amount that would have been paid for the land if it had been sold at that time by a willing but not anxious seller to a willing but not anxious buyer, disregarding (for the purpose of determining the amount that would have been paid):

(a) any increase or decrease in the value of the land caused by the carrying out of, or the proposal to carry out, the public purpose for which the land was acquired, and

(b) any increase in the value of the land caused by the carrying out by the authority of the State, before the land is acquired, of improvements for the public purpose for which the land is to be acquired, and

(2) When assessing the market value of land for the purpose of paying compensation to a number of former owners of the land, the sum of the market values of each interest in the land must not (except with the approval of the Minister responsible for the authority of the State) exceed the market value of the land at the date of acquisition.

Crown Lands Act 1989 No 6

106A Limits on compensation payable to reserve trusts

(1) This section applies:

(a) to the determination of the amount of compensation payable under Part 3 of the Land Acquisition (Just Terms Compensation) Act 1991 in respect of the compulsory acquisition of the whole or part of a reserve described in subsection (2), and

(b) to the determination under section 191 of the Roads Act 1993 of the amount of compensation payable or provided under Division 2 of Part 12 of that Act in respect of the acquisition under that Division of the whole or part of a reserve described by subsection (2), and

(c) to the determination under section 22A of the Pipelines Act 1967 of the amount of compensation payable in respect of the vesting of the whole or part of a reserve described by subsection (2) or the vesting of an easement over the whole or part of such a reserve.

(2) The following reserves are described by this subsection:

(a) a reserve in respect of which a reserve trust has been constituted, whether under this Part or by operation of Schedule 8,

(b) a reserve to which the provisions of this Part are applied by any other Act, or which is taken under any other Act to be a reserve under this Part, and in respect of which a reserve trust has been appointed or taken to be appointed,

other than a reserve that comprises dedicated land for which a Crown grant was granted to the reserve trust or a predecessor in title before the commencement of the Crown Lands (Land Titles) Amendment Act 1980.

(3) Despite section 55 of the Land Acquisition (Just Terms Compensation) Act 1991, in determining the amount of compensation, if any, payable to a reserve trust, regard is to be had to the following matters only (as assessed in accordance with this section):

(a) the value to the reserve trust of any improvements (including structures) erected or carried out by the trust on the land being acquired or vested, or over which the easement is vested, on the date the land is acquired,

(b) the amount of any loss attributable to the reduction in public benefit from any loss of public open space that arises from the acquisition or vesting of the land,

(c) the amount of any reduction in the value to the trust, as at the date the land is acquired or vests, or the easement vests, of any other improvements (including structures) erected or carried out by the trust on other land that is caused by the land acquired being severed from other land of the trust,

(d) the cost to the trust of acquiring additional land having environmental benefits that are comparable to the land being acquired or vested,

(e) any loss attributable to disturbance (within the meaning of section 59 of that Act), other than loss arising from the termination of a lease or licence over the whole or part of the land being acquired.

(4) For the purposes of a determination of an amount of compensation:

(a) the Crown is taken to be the holder in fee simple of the land being acquired or vested, or over which the easement is vested, and

(b) section 56 (2) of the Land Acquisition (Just Terms Compensation) Act 1991 applies as if the value of improvements (including structures) erected or carried out by the trust on the land is the market value of the trust’s interest in the land.

(5) A reserve trust that is, or is managed by, the authority acquiring the whole or part of a reserve is not entitled to compensation in respect of the acquisition or vesting if it decides not to require compensation and does not revoke that decision before the acquisition of the land concerned.

(6) Nothing in this section affects:

(a) any function of the Minister with respect to a reserve trust, including the Minister’s functions under sections 102 and 106, or the requirements of section 106, or

(b) the rights under the Land Acquisition (Just Terms Compensation) Act 1991 of a person from whom native title rights and interests (within the meaning of that Act) in relation to land have been acquired.

Roads Act 1993 No 33

41 Compulsory acquisition of land operates to close public road

A public road that is compulsorily acquired under this or any other Act or law ceases to be a public road as a consequence of its compulsory acquisition.

177 Power to acquire land generally

(1) The Minister, RMS or a council may acquire land for any of the purposes of this Act.

(2) Without limiting subsection (1), the Minister, RMS or a council may acquire:

(a) land that is to be made available for any public purpose for which it is reserved or zoned under an environmental planning instrument, or

(b) land that forms part of, or adjoins or lies in the vicinity of, other land proposed to be acquired for the purpose of opening, widening or constructing a road or road work.

(3) Without limiting subsection (1), RMS may also acquire land that it proposes to declare to be RMS development land.

178 Procedure for acquiring land

(1) Land that is authorised to be acquired under this Division may be acquired by agreement or by compulsory process in accordance with the Land Acquisition (Just Terms Compensation) Act 1991.

(2) A council may not give a proposed acquisition notice under the Land Acquisition (Just Terms Compensation) Act 1991 without the approval of the Minister.

179 Restriction on compulsory acquisition of land for resale

(1) Land may not be acquired by compulsory process under this Division without the approval of the owner of the land if it is being acquired for the purpose of re-sale.

(2) However, the owner’s approval is not required if the land forms part of, or adjoins or lies in the vicinity of, other land acquired at the same time under this Division for a purpose other than the purpose of re-sale or if the land is proposed to be RMS development land.

180 Special provisions relating to land containing minerals

Division 4 of Part 8 of the Public Works Act 1912 applies to the Minister, RMS and a council, and to land acquired by the Minister, RMS or a council, in the same way as it applies to a constructing authority within the meaning of that Act and to land acquired by a constructing authority.

191 Ascertainment of compensation payable

The amount of compensation to be provided is to be determined:

(a) by agreement between the applicant and each person whose claim has been accepted, or

(b) failing agreement, by the Land and Environment Court, or

(c) if the identity or whereabouts of the owner of any interest in the land concerned cannot be ascertained, by the Valuer-General.

Local Government Act 1993 No. 30

377 General power of the council to delegate

(1) A council may, by resolution, delegate to the general manager or any other person or body (not including another employee of the council) any of the functions of the council, other than the following:

(a) the appointment of a general manager,

(b) the making of a rate,

(d) the making of a charge,

(e) the fixing of a fee,

(f) the borrowing of money,

(g) the voting of money for expenditure on its works, services or operations,

(h) the compulsory acquisition, purchase, sale, exchange or surrender of any land or other property (but not including the sale of items of plant or equipment),

(i) the acceptance of tenders which are required under this Act to be invited by the council,

(j) the adoption of an operational plan under section 405,

(k) the adoption of a financial statement included in an annual financial report,

(l) a decision to classify or reclassify public land under Division 1 of Part 2 of Chapter 6,

(m) the fixing of an amount or rate for the carrying out by the council of work on private land,

(n) the decision to carry out work on private land for an amount that is less than the amount or rate fixed by the council for the carrying out of any such work,

(o) the review of a determination made by the council, and not by a delegate of the council, of an application for approval or an application that may be reviewed under section 82A of the Environmental Planning and Assessment Act 1979,

(p) the power of the council to authorise the use of reasonable force for the purpose of gaining entry to premises under section 194,

(q) a decision under section 356 to contribute money or otherwise grant financial assistance to persons,

(r) a decision under section 234 to grant leave of absence to the holder of a civic office,

(s) the making of an application, or the giving of a notice, to the Governor or Minister,

(t) this power of delegation,

(u) any function under this or any other Act that is expressly required to be exercised by resolution of the council.

(2) A council may, by resolution, sub-delegate to the general manager or any other person or body (not including another employee of the council) any function delegated to the council by the Director-General except as provided by the instrument of delegation to the council.

Local Government (General) Regulation 2005

400 Council seal

(1) The seal of a council must be kept by the mayor or the general manager, as the council determines.

(2) The seal of a council may be affixed to a document only in the presence of:

(a) the mayor and the general manager, or

(b) at least one councillor (other than the mayor) and the general manager, or

(d) at least 2 councillors other than the mayor.

(3) The affixing of a council seal to a document has no effect unless the persons who were present when the seal was affixed (being persons referred to in subclause (2)) attest by their signatures that the seal was affixed in their presence.

(4) The seal of a council must not be affixed to a document unless the document relates to the business of the council and the council has resolved (by resolution specifically referring to the document) that the seal be so affixed.

Item	Clause	Column 1	Column 2
1	2	Licensor	Byron Coast Reserve Trust
2	2	Licensee	Brunswick Heads Tennis Club Incorporated
3	2	Market Rent	$2,200.00 (exclusive GST)
4	2	Rent Rebate	$1,728.00 (exclusive GST)
5	2	Initial Rent (to be paid by Licensee)	$472.00 (exclusive GST)
6	2	Due Date	1 August 2017 and each anniversary of this date in each year of the Term of Agreement.
7	14.4	Annual Rental Adjustment	CPI adjustments every 12 months from commencement excluding Market Rent Review years and annually there after
8	14.5	Market Rent Review Date	3 years from Commencement Date of Licence and every 3 years thereafter
9	24	Address for Payment of Rent	Byron Shire Council 70-90 Station Street MULLUMBIMBY NSW 2482
10	46.1	Licensee’s address for Service of Notices	PO Box 1100 MULLUMBIMBY NSW 2482
11	46.2	Licensor’s address for Service of Notices	PO Box 219 MULLUMBIMBY NSW 2482. Attention: Manager Governance Services. Facsimile: 02 6684 3018
12	36	Public Risk Insurance amount	$20 Million
13	52	Licensor’s Contact Person	Manager Governance Services, Byron Shire Council Phone: 02 6626 7000
14	52	Licensee’s Contact Person	Ms Linda Hibbard Secretary. Email: brunstennis@gmail.com
15	6	Permitted Use	Tennis facility and associated activities.
16	7	Commencement Date	1 August 2017
17	7	Expiry Date	31 July 2027
18	2	Term of Agreement	Ten (10) years
19	5	Essential Conditions of Licence	Clauses 6.2, 6.3, 8, 14, 33, 36, 37, 38 45.2, 45.3, 45.4
20	25.2	Entry by the public	As per signage provided by the Licensee

EXECUTED BY Brunswick Heads Tennis Club Incorporated in the presence of:			THE COMMON SEAL of Byron Shire Council as Corporate manager of Bryon Coast Reserve Trust was affixed pursuant to a resolution passed the [INSERT day] day of [INSERT month] 2017
Signature of Authorised Person Print Name Office Held			Signature of Authorised Person Print Name Office Held
Signature of Authorised Person Print Name Office Held			Signature of Authorised Person Print Name Office Held
SIGNED BY THE LICENSEE in the presence of: Signature Print Name Print Address of Witness

Reserve Number	Part Reserve 97139 for Public Recreation notified 20 January 1984
Lot & Deposited Plan	Part Lot 437 DP 839424
Parish	Brunswick
County	Rous
Locality	Brunswick Heads
Street Address	South Beach Road, Brunswick Heads
Licence Area	Licenced area includes two fenced tennis courts, tennis lighting, tennis clubhouse and tennis car parking, an area of 1488.2m²
Plan of Licence are as per Clause 6.1	Licence area is shown by the outer red edging on the Plan attached and marked as “Annexure A”.
Third Party Exclusive Area	Not Applicable
Enclosed Area	Includes two fenced tennis courts, and car parking totalling an area of approximately 1336.9m², as shown on the attached Plan marked as “Annexure A”.