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Attachment 8 - Working draft - Deed of Variation to IA - 02.12.2019
Deed of Variation to Infrastructure Agreement Noosa Shire Business Centre – Part (Lot 2 on SP 110885) Noosa Shire Council (Council) Stockwell NC Pty Ltd ACN 632 359 623 as trustee under instrument 719594542 (Applicant) Stockwell Development Group Pty Ltd ABN 50 010 095 360 (Stockwell) Contact - Sarah Macoun, Partner, [email protected] BRISBANE PERTH Level 8, Waterfront Place, 1 Eagle Street T +61 7 3024 0000 Level 27, Allendale Square, 77 St Georges Terrace T +61 8 9211 8111 Brisbane Qld 4000 Australia F +61 7 3024 0300 Perth WA 6000 Australia F +61 8 9221 9100 PO Box 7822, Waterfront Place Qld 4001 Australia PO Box Z 5312, St Georges Terrace, Perth WA 6831 Australia E [email protected] www.hopgoodganim.com.au
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Page 2
Table of Contents
1. Definitions, interpretation and Commencement ...........................................................................1
1.1 Definitions ..........................................................................................................................1
1.2 Interpretation ......................................................................................................................2
1.3 Parties ................................................................................................................................2
1.4 Commencement .................................................................................................................3
2. Variation .......................................................................................................................................3
2.1 Infrastructure Agreement ...................................................................................................3
2.2 Condition precedent ...........................................................................................................3
2.3 Confirmation of liability .......................................................................................................3
2.4 Time ...................................................................................................................................3
3. Governing law and jurisdiction .....................................................................................................3
3.1 Governing law ....................................................................................................................3
3.2 Jurisdiction .........................................................................................................................3
4. Miscellaneous ...............................................................................................................................4
4.1 Legal effect ........................................................................................................................4
4.2 Severability ........................................................................................................................4
4.3 Further assurance ..............................................................................................................4
4.4 Costs ..................................................................................................................................4
4.5 Variation .............................................................................................................................4
4.6 Counterparts ......................................................................................................................4
4.7 Whole agreement...............................................................................................................5
Schedule 1 Infrastructure Agreement .......................................................................................................6
Schedule 2 Variations ...............................................................................................................................7
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Deed of Variation
Date
Parties
Noosa Shire Council (Council)
Stockwell NC Pty Ltd ACN 632 359 623 as trustee under instrument 719594542 (Applicant)
Stockwell Development Group Pty Ltd ABN 50 010 095 360 (Stockwell)
Background
A. The Land is the subject of the Infrastructure Agreement.
B. Stockwell has lodged with the Council a development application for reconfiguration of a lot
with respect to Lot 3 on SP246584, which is part of the Land.
C. Council has publicly notified the New Noosa Plan which, when adopted by Council, will replace
the current Noosa Plan 2006.
D. The draft New Noosa Plan includes a revised business centre framework plan for The Land
which, among other things, shows indicative uses and development precincts, proposed roads,
proposed pedestrian links and character landscape areas.
E. Stockwell’s development application for reconfiguration of a lot responds to the draft New
Noosa Plan and has been designed to accommodate development in accordance with the
draft New Noosa Plan.
F. The parties have agreed to amend the Infrastructure Agreement to align with the development
intent for The Land as set out in the draft New Noosa Plan, in accordance with the terms and
conditions set out in the deed.
Now this deed witnesses
1. Definitions, interpretation and Commencement
1.1 Definitions
In this deed:
Commencement Date means the date when the last party executes this deed.
Infrastructure Agreement means the agreement dated 3 October 2003 between the Noosa
Shire Council and the Applicant included as Schedule 1.
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Deed of Variation
Stockwell means Stockwell Development Group Pty Ltd ABN 50 010 095 360.
Variations means the amendments to the Infrastructure Agreement as set out in schedule 2.
1.2 Interpretation
(a) Unless the contrary intention appears, a reference in this deed to:
(1) a definition or expression used or defined in the Infrastructure Agreement has
the same meaning in this deed;
(2) one gender includes the others;
(3) the singular includes the plural and the plural includes the singular;
(4) a person, partnership, corporation, trust, association, joint venture,
unincorporated body, Government Body or other entity includes any other of
them;
(5) an item, recital, clause, subclause, paragraph, schedule or attachment is to an
item, recital, clause, subclause, paragraph of, or schedule or attachment to,
this deed and a reference to this deed includes any schedule or attachment;
(6) a party includes the party’s executors, administrators, successors, substitutes
(including a person who becomes a party by novation) and permitted assigns;
(7) any statute, ordinance, code or other law includes regulations and other
instruments under any of them and consolidations, amendments, re-
enactments or replacements of any of them;
(8) money is to Australian dollars, unless otherwise stated; and
(9) a time is a reference to Brisbane time unless otherwise specified.
(b) The words include, including, such as, for example and similar expressions are not to
be construed as words of limitation.
(c) Where a word or expression is given a particular meaning, other parts of speech and
grammatical forms of that word or expression have a corresponding meaning.
(d) Headings and any table of contents or index are for convenience only and do not affect
the interpretation of this deed.
(e) A provision of this deed must not be construed to the disadvantage of a party merely
because that party or its advisers were responsible for the preparation of this deed or
the inclusion of the provision in this deed.
1.3 Parties
(a) If a party consists of more than one person, this deed binds each of them separately
and any two or more of them jointly.
(b) An agreement, covenant, obligation, representation or warranty in favour of two or
more persons is for the benefit of them jointly and each of them separately.
(c) An agreement, covenant, obligation, representation or warranty on the part of two or
more persons binds them jointly and each of them separately.
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Deed of Variation
1.4 Commencement
This deed commences and has effect on the Commencement Date.
2. Variation
2.1 Infrastructure Agreement
The parties agree that:
(a) The Infrastructure Agreement is varied by this deed only in the manner and to the
extent described in the Variations; and
(b) The Variations to the Infrastructure Agreement come into effect on and from the
Commencement Date.
2.2 Condition precedent
(a) This Variation Deed is subject to and conditional on each party unconditionally
delivering a full and validly executed deed or counterpart of this deed to the other
party.
(b) Each party must use all reasonable endeavours to procure the satisfaction of the
condition specified in clause 2.2(a).
(c) If the condition in clause 2.2(a) is not satisfied then this deed will be of no force or
effect and the parties will have the same rights and obligations which they had prior to
the date of execution of the deed as if this deed had never been executed.
2.3 Confirmation of liability
The parties:
(a) affirm that they are bound by the terms of the Infrastructure Agreement (as varied by
this deed); and
(b) acknowledge that their obligations and liability under the Infrastructure Agreement are
not discharged or varied by this deed except to the extent that this deed may otherwise
expressly specify.
2.4 Time
If, under the Infrastructure Agreement, time is of the essence in relation to the performance of
an Obligation of a party, time remains of the essence in relation to that Obligation unless this
deed specifies otherwise.
3. Governing law and jurisdiction
3.1 Governing law
This Variation Deed is governed by and construed in accordance with the laws of Queensland.
3.2 Jurisdiction
Each party irrevocably:
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(a) submits to the non-exclusive jurisdiction of the courts of Queensland and the courts
competent to determine appeals from those courts, with respect to any proceedings
which may be brought at any time relating to this deed; and
(b) waives any objection it may now or in the future have to the venue of any proceedings,
and any claim it may now or in the future have that any proceedings have been
brought in an inconvenient forum, if that venue falls within clause 3.2(a).
4. Miscellaneous
4.1 Legal effect
Each party acknowledges and agrees for the benefit of each other party that this document is
intended to take effect as a deed. Each party executes this document with the intention that it
will be immediately legally bound by this document despite the existence of, but subject to, the
conditions precedent contained in clause 2.2. To avoid any doubt, there will be no need for
further delivery of this document following the satisfaction of the conditions precedent
contained in clause 2.2.
4.2 Severability
If a provision of this deed is illegal, invalid, unenforceable or void in a jurisdiction it is severed
for that jurisdiction and the remainder of this deed has full force and effect and the validity or
enforceability of that provision in any other jurisdiction is not affected.
4.3 Further assurance
Each party must promptly at its own cost do all things (including executing and delivering all
documents) necessary or desirable to give full effect to this deed and the transactions
contemplated by it.
4.4 Costs
Each party is responsible for all its own costs incurred in the negotiation and performance of
this deed including legal costs.
4.5 Variation
An amendment or variation to this deed is not effective unless it is in writing and signed by the
parties.
4.6 Counterparts
This deed may be executed in any number of counterparts each of which will be considered an
original but all of which will constitute one and the same instrument. A party who has executed
a counterpart of this deed may deliver it to, or exchange it with, another party by:
(a) faxing; or
(b) emailing a pdf (portable document format) copy of,
the executed counterpart to that other party.
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4.7 Whole agreement
This deed:
(a) is the entire agreement and understanding between the parties relating to the subject
matter of this deed; and
(b) supersedes any prior agreement, representation (written or oral) or understanding on
anything connected with that subject matter.
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Deed of Variation Schedule 1 Infrastructure Agreement HopgoodGanim Lawyers Page 6 of 10 1958131 - 20238905_1.docx
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Deed of Variation
Schedule 2 Variations
The Infrastructure Agreement is varied as follows:
1. Stockwell is included as a party to the Infrastructure Agreement.
2. Clause 1.5, the insertion of the following new definitions:
“Draft Framework and Character Plan means Project Drawing NO.0717-0282-20_D005-2
Rev 00 dated 11 September 2019 (which is the Noosa Business Centre Framework and
Character Plan in Figure 7.2.4.5 of the Draft New Noosa Plan) a copy of which is contained in
Annexure 7 (together with Zone Map 12 - Noosaville and the Major Centre Zone Code and
table of assessment).
Draft New Noosa Plan means the draft New Noosa Plan publically notified between 18
February 2019 and 20 May 2019 and incorporates the significant changes publicly notified
between 16 September 2019 and 11 November 2019.
Hofmann Drive Extension means the extension of Hofmann Drive through to Walter Hay
Drive identified in dark pink on the Subdivision Plan as “Dedication of road reserve for
extension of Hofmann Drive”.
New Public Road means the new public road from the northern roundabout on Walter Hay
Drive to the boundary of proposed Transit Lot 24 identified in dark yellow on the Subdivision
Plan as “New Public Road”.
Pedestrian Thoroughfare Easement means the proposed 4m wide easement for public
pedestrian access along the eastern side of Lot 1 and the western side of Lots 3 and 4
crossing covenant J as identified in pale pink on the Subdivision Plan as “4m Pedestrian
Thoroughfare Easement.
Reconfiguration of a Lot Application means the development application for a development
permit for reconfiguration of a lot with respect to Lot 3 on SP246584 (Council reference
RAL18/0023).
Subdivision Plan means the subdivision plan prepared by Bennett & Francis Pty (reference
034389.57) dated 29 November 2019 a copy of which is contained in Annexure 8.
Transit Lot 24 means the lot marked as “24” on Annexure 9”
3. Clause 1.5, by amending the definition of Master Plan 2 and Shire Business Centre by addition
of the words shown in underlining below:
“Master Plan 2 means The Shire Business Centre Master Plan: Stage 2 (MP2) adopted by the
Council on 10 April 2003 a true copy of which is contained in Annexure 5 as amended by the
Draft Framework and Character Plan.
Shire Business Centre means the Shire Business Centre for Noosa planned for development
on land including the Land and described in Section 19.3 of the Strategic Plan or Draft
Framework and Character Plan.”
4. Clause 1.5, by amending the definition Open Space Area G by addition of the words shown in
underlining below:
“Open Space Area G means the area shown as “OS7” on Master Plan 2 which is proposed to
be maintained as Private Open Space substantially in its natural state for environmental
drainage and ecological purposes and is hatched on the plan in Annexure 2, with its area
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reduced to align with the area identified as “Character Landscape” on the Draft Framework
and Character Plan (that is, up to the southern boundary of the 5000sqm Transit Facility Lot
identified in pale yellow on the Subdivision Plan) .”
5. Insertion of a new Clause 4.6 as follows:
“4.6 Open Space Area G
For the avoidance of doubt, the parties acknowledge that:
a. The area of Open Space Area G (which, in this clause, is taken to be a reference to Open
Space Area G without incorporating the amendments shown on the Draft Framework and
Character Plan) is reduced under the Draft Framework and Character Plan;
b. The reduction in the area of Open Space Area G as shown on the Draft Framework and
Character Plan does not alter:
i. the deemed contribution to community infrastructure - private open space provided
by clause 4.3;
ii. the immunity provided by clause 4.4 of the Infrastructure Agreement; or
iii. the limitation on buffers, building setbacks and land requirements provided by
clause 4.5.
c. If the Reconfiguration of a Lot Application is approved and the approval takes effect, the
Applicant will amend the covenant over The Land so that the extent of Covenant J accords
with the reduced area of Open Space Area G.”
6. Insertion of a new Clause 4.7 as follows:
“4.7 Koala habitat trees acknowledgement
For the avoidance of doubt, the parties acknowledge that performance of Stockwell’s
obligations under Clauses 4.1 to 4.3 of the Infrastructure Agreement is intended to fully offset
the residual impact of any clearing of koala habitat trees required to undertake development of
the Shire Business Centre as contemplated by Master Plan 2 (and where, to the extent
relevant, amended by the Draft Framework and Character Plan)”.
7. Insertion of a new clause 6.7 as follows:
“6.7 Hofmann Drive Extension
If the Reconfiguration of a Lot Application is approved and the approval takes effect, the
Applicant shall, at no cost to Council:
a. design and construct the Hofmann Road Extension in accordance with the conditions
imposed on any approval,
b. dedicate any land required for the Hofmann Road Extension.”
8. Insertion of a new clause 6.8 as follows:
“6.8 New Public Road
If the Reconfiguration of a Lot Application is approved and the approval takes effect, the
Applicant shall, at no cost to Council:
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a. design and construct the New Public Road (or any part not yet constructed) in accordance
with the conditions imposed on any approval; and
b. dedicate any land required for the New Public Road.”
9. Insertion of a new clause 6.9 as follows:
“6.9 Pedestrian Thoroughfare Easement
If the Reconfiguration of a Lot Application is approved and the approval takes effect, the
Applicant shall, at no cost to Council, grant the Pedestrian Thoroughfare Easement to Council
on terms satisfactory to both parties and in accordance with the conditions imposed on any
approval.”
10. Insertion of a new Part 6A as follows:
“6A Emergency bushfire access to Walter Hay Drive
If the Reconfiguration of a Lot Application is approved and the approval takes effect, the
Applicant shall, at no cost to Council, provide an emergency bushfire access to Walter Hay
Drive on terms satisfactory to both parties and in accordance with the conditions imposed on
any approval.”
11. Insertion of a new clause 7.3 as follows:
“7.3 Dedication of Transit Lot 24
a. If the Reconfiguration of a Lot Application is approved and the approval takes effect, the
Applicant shall, at no cost to Council, dedicate the land described as Transit Lot 24.
b. For the avoidance of any doubt:
i. Stockwell is not required to construct the transit centre facility on Transit Lot 24;
ii. All carparking required to deliver development on Transit Lot 24 is contained on
that land.
12. Insertion of a new clause 10.6 as follows:
“10.6 Development Intensity
For the avoidance of doubt, the parties acknowledge that:
a. The Draft Framework and Character Plan identifies different uses in different precincts to
those shown on Master Plan 2 (which, in this clause, is taken to be a reference to Master
Plan 2 without incorporating the amendments shown on the Draft Framework and
Character Plan);
b. The intensity of development contemplated by the Draft Framework and Character Plan
does not exceed the intensity of development contemplated by Master Plan 2.”
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Deed of Variation Signing page Executed as a deed by Noosa Shire Council Director/Sole Director/Sole Director and Secretary Director/Secretary (if applicable) Print full name of Director/Sole Director Print full name of Director/Secretary Executed as a deed by Stockwell NC Pty Ltd ACN 632 359 623 as trustee under instrument 719594542 Director/Sole Director/Sole Director and Secretary Director/Secretary (if applicable) Print full name of Director/Sole Director Print full name of Director/Secretary Executed as a deed by Stockwell Development Group Pty Ltd ABN 50 010 095 Director/Sole Director/Sole Director and Secretary Director/Secretary (if applicable) Print full name of Director/Sole Director Print full name of Director/Secretary HopgoodGanim Lawyers Page 10 of 10 1958131 - 20238905_1.docx