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2020-10-12 GC Agenda - Item 6 - Attachment 2 - Infrastructure Agreement
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General Committee Agenda
12 October 2020
Item 6, Attachment 2
General Committee Agenda
12 October 2020
Item 6, Attachment 2
NOOSA SHIRE COUNCIL
BODY CORPORATE - NETANYA NOOSA CTS 17658
INFRASTRUCTURE DEED IN RESPECT OF PAYMENT OF CONTRIBUTIONS
IN LIEU OF OFF-STREET PARKING FOR A DEVELOPMENT PERMIT FOR:
CHANGE TO DA - REFURBISHMENT OF BUILDING
DEVELOPMENT PERMITS:
1. 51901.3614.01 - TPC 1008 - Change to DA - Refurbishment of Building oe
(ACCOMMODATION UNITS (29 MOTEL UNITS), 3 SHOPS & 2
RESTAURANTS) ,
2. 51901.3786.02 - TPC 1737 - Change to DA - Refurbishment of Building
(MULTIPLE DWELLING 18 UNITS, 3 SHOPS, GYMNASIUM & MEETING
ROOM)
3. 51992.479.01 - TPC 2418 - Change to DA - Refurbishment of Building
(EXTENSION TO RESTAURANT (OUTDOOR DINING AREA)
4. 51994.1249.01 - TPC 2678 - Change to DA - Refurbishment of Building
(CONVERSION OF PART OF AN EXISTING RESTAURANT INTO 3 .
SHOPS
5. 51994.1048.01 - TPC 2679 - Change to DA - Refurbishment of Building |
(ALTERATIONS AND EXTENSIONS TO AN EXISTING RESTAURANT
AND OUTDOOR DINING AREA)
6. MCU13/0081.01 - Change to DA - Refurbishment of Building
(Cafe/Retail)
LL
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: : jSection 3
THIS DEED is made on the date stated in item 1.
BETWEEN The Council
AND the Applicant
AND the Owner
RECITALS
A __ The applicant and the owner is BODY CORPORATE - NETANYA NOOSA CTS
17658.
B The applicant lodged a development application in relation to the Subject Site.
C The applicant has made a request to the Council that it provide fewer on-site car
parking spaces for the development proposed by the development application than
would otherwise be required under the planning scheme.
D The applicant proposes a contribution be paid for the shortfall in the number of car
parks which would otherwise be required.
IT IS AGREED
1 INTERPRETATION
1.1 Nature of Deed
This deed accords with Clause 2.
1.2 Commencement
This deed commences on the Commencement Date.
1.3. Interpretation
(a) In this deed, unless a contrary intention appears, reference to:
(i) | aclause is to a clause in this deed; and
(ii) | the singular includes the plural and vice versa; and
(ili) any gender includes all other genders; and
(iv) a person includes a firm, a corporation, an association and a body,
whether incorporated or not and a government or statutory entity or
authority; and
(v) legislation (including subordinate legislation) includes:
(A) statutory instruments under the legislation; and
(B) consolidations, amendmenis, re-enactments or replacements of
the legislation; and
Page 3 of 13 JLSection 4
(vi) writing includes any mode of representing or reproducing words in
tangible and permanently visible form and includes facsimile
transmission; and
(vii) this or any other deed includes the deed as varied or replaced and is
not affected by any change in the identity of the parties; and
(viii) a day is a Calendar Day
(d) Whenever more persons than one constitute a party, all the covenants,
deeds, conditions, restrictions and provisos on the part of that party
contained or implied in this deed bind those persons jointly and each of them
severally.
(e) This deed is in all respects to be interpreted in accordance with the laws of
the State of Queensland, and the parties irrevocably and unconditionally
submit to the non-exclusive jurisdiction of the courts of that state and any
courts which have jurisdiction to hear appeals from them, and waive any
right to object to proceedings being brought in those courts.
(f) Nothing contained in this deed affects, prejudices or derogates from the
requirements of any statute or from the rights, powers and authorities of the
Council under the provision of any statute or under any declared policy of
the Council.
(i) | All schedules to this deed form part of this deed and a reference to an item
is a reference to an item in Schedule 1 unless stated otherwise.
(j) | Terms used in the Special Conditions which are not otherwise defined in
Clause 1.4 (Definitions) shall have the meanings assigned to them in the
Council’s Planning Scheme.
1.4 Definitions
In this deed:
“Act” means the Planning Act 2016 (the “Act’).
applicant means the person described in and having its address at the place
described in item 4 of Schedule 1 and includes:
(a) successors and permitted assigns in the case of a corporation, association
or other body whether incorporated or not; and
(b) executors, administrators and permitted assigns in the case of a natural
person.
“Calendar Day” has the meaning given in section 36 of the Acts Interpretation Act
1954 (Qld).
“Chief Executive Officer’ means the Chief Executive Officer of the Council and
includes the person (if any) for the time being acting as Chief Executive Officer.
“Commencement Date” means the date when this deed commences being the
date when the last party executes this deed
“Council” means the Local Government described in Item 3 of Schedule 1 and its
predecessors, successors, transferees and assigns.
“development” has the meaning given in the Act. TL
Page 4 of 13Section 5
“development application and development permit” have the meanings given
in the Act and are identified in Item 7 of Schedule 1.
“Index Number’ means the Consumer Price Index - Index Numbers; All Groups
CPI for Brisbane produced by the Australian Bureau of Statistics. If the said Index
is suspended or discontinued or if different factors are used to determine the same
Index, the Index Number shall be such an Index as the Council and Owner agree
reflects increases in the costs of living in Brisbane. In default of such agreement
such Index will be as determined on the application of either party to the President
of the Queensland Law Society Inc at the relevant time, or his Nominee, acting as
an expert and not as an arbitrator and whose decision shall be conclusive.
“infrastructure charges notice" has the meaning given in the Act.
“Infrastructure Contribution” mean the contribution in lieu of car parking spaces
required under clause 3.2.
“local government’ has the meaning given in the Local Government Act 2009.
“local government area” has the meaning given in the Local Government Act
2009.
“lot” has the meaning given in the Act.
, “Notice” means any certificate, demand or notice to be made, given or served by
a party under this deed.
“owner” has the meaning given in the Act and is the person described in item 4A
of Schedule 1.
“Planning Scheme’ means the planning scheme of the Council applicable for the
Subject Site.
“Special Conditions” means the conditions specified in item 6 of Schedule 1 with
which the Owner and Applicant must comply.
“Subject Site” means the land described in item 5 of Schedule 1 and includes:
(a) any interest or estate in, on, over or under the land; and
(b) the airspace above the surface of the land and any estate or interest in the
land; and
(c) the subsoil of the land and any estate or interest in the subsoil; and
(d) any part or parts of the land; and
(e) any estate or interest created in respect of any of the above matters.
“use” has the meaning given in the Act.
1.5 Other Expressions
If a term is not defined in this Deed it shall unless the context otherwise requires,
have the meaning given to it by:
(a) the Act; or
(b) the Macquarie Dictionary in the absence of a definition in the Act.
1.6 Rights and Obligations
Where righis or obligations are in respect to any contributions or works those rights
shall be rights in favour of Council and those obligations shall be obligations to
Council.
Page 5 of 13 TL.Section 6
2 INFRASTRUCTURE DEED
2.1. Application of Act
This Deed constitutes an infrastructure agreement under the Act.
- 2.2 Warranty of Ownership
The owner warrants that, at the time of signing this agreement, it is the owner of
the land.
| 2.3 Deed to bind successors in title
The owner consents to the obligations of the applicant under this Deed being
attached to the Subject Site and binding on the owner and the owner’s successors
in title in accordance with Section 155 (When infrastructure agreements bind
successors in title) of the Act.
2.4 Deed conditional upon approval of Development Application
This Deed is conditional upon the development permit taking effect.
3 INFRASTRUCTURE CONTRIBUTION
3.1. Infrastructure Agreement overrides Development Permit
This Deed applies to the extent of any inconsistency with the development permit
and the Infrastructure Contribution payable hereunder is in addition to any
conditions of, or payments required by, the development permit and/or any
infrastructure charges notice given in respect of the development.
3.2. Contribution in lieu of off-street parking
The applicant must pay the Council the greater of:
(a) the amount identified in Schedule 2 of this Deed; or
(b) the amount calculated in accordance with the formula in Clause 3.3.
3.3 Indexed Infrastructure Contribution in lieu of off-street parking
The Infrastructure Contribution in lieu of off-street parking payable, identified in
Schedule 2, shall be indexed annually for a financial year in accordance with the
following formula:-
A=BxC
D
Where A = the Indexed Infrastructure Contribution amount at the time the
payment is made
Where B= the Additional Networks Infrastructure Contribution identified in
Schedule 2.
Where C = the Index Number for the March quarter immediately preceding the
financial year in which the Infrastructure Contribution is being paid;
and
Page 6 of 13 SLSection 7
Where D = the Index Number for the March quarter immediately preceding the
financial year upon which the Infrastructure Contribution is issued as
stated in Schedule 2. ,
3.4 Time for payment
The Infrastructure Contribution in lieu of off-street parking is to be paid before the
use approved by the Development permit commences.
3.5 Payment to Council
The Infrastructure Contribution in lieu of off-street parking shall be paid to Council
unless the applicant is directed in writing by Council to pay it otherwise.
3.6 Onsite carparking spaces
In addition to payment of the infrastructure contribution the applicant shall provide
the number of car parking spaces on the subject site specified in Item 8.
4 GOODS AND SERVICES TAX
The federal government has determined that rates and utility charges levied by
local government will be GST free. Accordingly, no component for GST is included
in this Infrastructure Contribution.
5 DEFAULT BY OWNER OR APPLICANT
5.1. Rights of the Council on default
(f the applicant fails to duly perform and fulfil any or all of its obligations under
Clause 3 the Council may recover from the applicant or the owner the whole or
any amount of the Infrastructure Contribution not paid and its costs of recovery.
5.2 Application of money
The Council may apply any sum recovered or received by it pursuant to Clause
5.1 (rights of the Council on default) as far as the sum may extend to or towards
all or any one or more of the following:
(a) reduction or discharge of the amount payable by the applicant or owner
under this Deed; and
(b) reimbursing itself for the cost of works done and/ or for any damages or costs
suffered by it as a consequence of such non-payment.
6 RECONFIGURATION OF THE SUBJECT SITE
6.1 Reconfiguring and compliance
If the Subject Site is reconfigured under the provisions of the Act and the
obligations under this Deed have been satisfied, then this Deed no longer remains
attached to the reconfigured lots and the owner’s successors in title are not bound
by this deed.
6.2. Reconfiguring and non-compliance
If the Subject Site is reconfigured under the provisions of the Act and the
obligations under this Deed have not been satisfied, this Deed remains attached
to the reconfigured lots and the owner’s successors in title remain bound by this
deed. -
—
Page 7 of 13 TLSection 8
7 SERVICE
7.1. Service by prepaid post
A Notice is sufficiently made, given or served by a party if left at or forwarded by
prepaid post in an envelope addressed to the other party or any of them (where
there are more persons than one person comprising the other party) at the address
of that party specified in Schedule 1.
7.2 Deemed service
A Notice if sent by prepaid post is deemed to have been made, given or served at
the time when in the due course of the post it would be delivered at the address to
which it is directed whether or not it is actually received.
7.3 Proof of service
In proving service of a Notice made, given or served by the Council it is only
necessary for the Council to certify to that effect under the hand of the Chief
Executive Officer.
7.4 Form of Notice
(a) A Notice given by a party must be in writing and signed by the party.
(b) A Notice given by a party may be signed by an officer of that party or the
solicitor for that party.
(c) Aparty receiving a Notice is not obliged to enquire as to the authority of the
person signing the Notice.
8 MISCELLANEOUS
8.1. Payment of costs
The applicant shall pay the Council’s legal costs of and incidental to the
preparation and execution of this Deed on a solicitor own client basis.
8.2 Time
Time is, in all cases, of the essence.
8.3 Place for payment of monies
All monies payable to Council under this deed are payable free from all deductions
at the address of Council specified in Schedule 1.
8.4 Waiver
No waiver by the Council of any breach by the applicant or owner of any of the
provisions of this Deed shall be implied against the Council or be otherwise
effective unless it is in writing under the hand of the Chief Executive Officer.
8.5 Laches and delay
No laches or delay by the Council at any time or times in enforcing any of its rights,
powers and the like under this Deed prejudice or affect those rights or powers.
Page 8 of 13Section 9
8.6 Severance
If any provision of this Deed cannot be given effect or full force and effect by reason
of statutory invalidity that provision shall be severed or read down but so as to
maintain and uphold so far as possible the remaining provisions of this deed.
8.7 Warranty of authority
Any person signing this Deed:
(a) as attorney of any party warrants to the other parties that at the date of
execution that person has not received any notice or information of the
revocation of the power of attorney appointing that persons; and
(b) as an authorised officer, agent or trustee of any party warrants to the other
parties that at the date of execution that person has full authority to execute
this deed in that capacity.
8.8 Further assurances
Each party agrees at its cost to do everything reasonably necessary to give effect
to this Deed.
8.9 Amendment of deed
(a) Despite any provision of this Deed, the parties may at any time agree to vary
the terms of this Deed
(b) No modification, variation or amendment of this Deed is of any force or effect
unless:
(i) it is in the form of an amendment Deed and has been signed by the
parties; and
(ii) | where relevant the amendment Deed complies with the requirements
of the Act.
SL
Page 9 of 13Section 10
SCHEDULE 1
Deed Details
ITEM 1 Date The Commencement Date
ITEM 2 Name of Deed Infrastructure Deed in respect of payment of car
parking contributions for a development permit
for: Change to DA’s - Refurbishment of Building
ITEM 3 Council Noosa Shire Council
9 Pelican Street, Tewantin in the State of
Queensland
PO Box 141, Tewantin QLD 4565
ITEM 4 applicant BODY CORPORATE - NETANYA NOOSA
CTS 17658
c/- Sound Body Corporate Management
PO Box 1547
Noosa Heads QLD 4567
ITEM 4A = owner BODY CORPORATE - NETANYA NOOSA
CTS 17658
c/- Sound Body Corporate Management
PO Box 1547
Noosa Heads QLD 4567
ITEM 5 Subject Site BUP 101500
County of MARCH
Parish of WEYBA
NETANYA 71 Hastings St,
NOOSA HEADS QLD 4567
ITEM 6 Special Conditions The Infrastructure Contribution must be paid in
accordance with clause 3.2 of this deed
ITEM 7 Development Application 1. 51901.3614.01 - TPC 1008 - Change to DA -
and Permit Refurbishment of Building
(ACCOMMODATION UNITS (29 MOTEL
UNITS), 3 SHOPS & 2 RESTAURANTS)
2. 51901.3786.02 - TPC 1737 - Change to DA -
Refurbishment of Building (MULTIPLE
DWELLING 18 UNITS, 3 SHOPS,
GYMNASIUM & MEETING ROOM)
3. 51992.479.01 - TPC 2418 - Change to DA -
Refurbishment of Building (EXTENSION TO
RESTAURANT (OUTDOOR DINING AREA)
4. 51994.1249.01 - TPC 2678 - Change to DA -
Refurbishment of Building (CONVERSION
OF PART OF AN EXISTING RESTAURANT
INTO 3 SHOPS
5. 51994.1048.01 - TPC 2679 - Change to DA -
Refurbishment of Building (ALTERATIONS
AND EXTENSIONS TO AN_ EXISTING
a
Page 10 of 13 VLSection 11
RESTAURANT AND OUTDOOR DINING
AREA)
6. MCU13/0081.01 - Change to DA -
Refurbishment of Building (Cafe/Retail)
ITEM 8 Number of onsite 39
carparking to be provided
J
Page 11 of 13 r/Section 12
SCHEDULE 2
Contribution in lieu of off-street parking
The Contributions in lieu of off-street parking are detailed in Table 1:
Table 1 Contributions in lieu of off-street parking Se : ee
Amount Payable
INFRASTRUCTURE CONTRIBUTION Current at: 2020-2021
Financial Year
Contribution in lieu of off-street parking for 3 car park space $74,436.00
TOTAL =
; 74,436.00
(Subject to indexation applicable at date of payment)
PAYMENT OF THE INFRASTRUCTURE CONTRIBUTION
i. The monetary contribution is payable in accordance with this Infrastructure
Agreement.
ii. The monetary contribution is payable before the use commences. The contribution is
to be paid to Noosa Council.
iii. Methods of payment
Cheque or money order to be made payable to: Noosa Council
PO Box 141, Tewantin, QLD 4565
Noosa Council Tewantin office: 8.30 am to 4.30 pm Monday to Friday
(excludes public holidays)
Mastercard or Visa only
Credit Card Note: All payments made by credit card will incur a 0.5% surcharge to reflect the
cost of fees charged for credit card transactions.
Direct Bank Payment by electronic transfer direct to Council's Bank Account is only
Transter available by special arrangement. Contact Infrastructure Enquiries:
[email protected]
iv. Please contact Council directly via telephone on: (07) 5329 6211 or 5329 6449 during
office hours or alternatively via email: [email protected] a minimum of 5
business days prior to payment of the infrastructure contributions for the current
indexed amounts applicable at the time of payment.
SL
12 of 13Section 13
EXECUTED AS A DEED.
This deed dated this day of 2020
BETWEEN NOOSA SHIRE COUNCIL a Local Government duly constituted under the
provisions of the Local Government Act 2009
(“Council”)
AND BODY CORPORATE - NETANYA NOOSA CTS 17658
(“the applicant” and “the owner”)
SIGNED SEALED AND DELIVERED by the_)
delegated officer for and on behalf of tte ) eee a
NOOSA SHIRE COUNCIL ) Signature
)
) Name
)
\
) Dated
Signed/Executed by the applicant and owner: BODY CORPORATE - NETANYA NOOSA
CTS 17658
(If a company In accordance with Section 127 of the Corporations Act 2007)
_
Vortionss? Qoonitenann 7 Com csusvusvuvussssvesvssssssssivasssssssisvistesssessese
(Director/Company Secretary/Nap “BODY co Ton Wirector/ Name)
Ak RP
CHA RMAs NETAyyn ORATE Fp
(Signature) } LA. ‘ v HEME ing’ (Signature)
(Date) (Date)
In the presence of Witness being a Justice of the Peace:
\] ONES, Ls oso) xe FoR DECLap »
(Name) S A
__ 6 eae
(i Se A. peaNo: Woe Uy EE,
(Signature) cad JUSTICE & Arion’ °
-_
Ve
13 of 13