Infrastructure deed of construction of Access, Track, Maintenance of Veg STP24-0253 Application for Operational Works Fire Trail - 80 Cooyar Street Noosa Heads · OPW24/0118

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CONTENTS

 

 

 

 
  
  

 

 

 

 

 

 
 

1. INTERPRETATION 4
1.41 Nature Of D6 Cds csiscvus cuss sacvaus sawewenes coneean consssmnanoesce mseameaina eaveronicaaa commend 4
1.2 Commencement
1.3. Interpretation
1.4 Definitions
1.5 Other Expressions .. 6
1.6 — Rights and Obligations
2. INFRASTRUCTURE DEED
2.1 Application Of ACt oo... eccceeeeeeeeestteeeeeeenneeeeeeneeeeneesnieeeesnnieeeeestneeeeess
2.2. Warranty of Ownership
2.3 Deed to bind successors in title.. 6
2.4 Deed conditional upon approval of Development Application
Be INFRASTRUCTURE CONTRIBUTION 7
3:1 Infrastructure Agreement overrides Development Permit................00. 7
3.2 Infrastructure ContribUtion ........0. ce cece cere teen e cet eeeeeeeeetneeeceeenaes 7
GOODS AND SERVICES TAX
5. DEFAULT BY OWNER OR APPLICANT
5.1 Rights of the Council on default ....:.....0..eccceeccececeeeeeeeeeeneeeneeeeseeeeeenaees 8
5.2 Application Of MONCY ccccsossccnceerimaccasmnanernnuns aneearvorrmecnenmmien vor eormrenes 8
6. RECONFIGURATION OF THE SUBJECT SITE 8
6.1 RECONIQUIING BNA COMPUANCE saresiscasseaccassxesacaveniscosacneerenencexvaneieaevousues 8
6.2 Reconfiguring and NON-COMPNANCE .......0. ccc. cccsscavseernoseseanroresternenerennese 8
7. SERVICE 8
7.1 Service by prepaid POS. seccciesncsnenen corannnes svenaconsnvana savesenanes wncansatnmeceounans 8
2 Deemed service
7.3 Proof of service
7.4 Form Of Notice ..........:ccceceeeeceeeeeeeeeeeeeereeeteeeneeeeneseeecieesteeseteeseneeenteneees
8. MISCELLANEOUS 9
8.1
8.2
8.3
8.4
8.5 Laches and delay...
8.6 Severance
8.7. Warranty of authority
8.8 Further assurances
8.9 Amendment of deed
SCHEDULE 1 11
EXECUTED AS A DEED 12

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THIS DEED is made on the date stated in item 1

BETWEEN The Council

AND the Owner

RECITALS

A The owner has obtained various approvals (216575 DA / 132001.210127.3) in order
to construct and operate an aged care facility on the Subject Site,

B The owner has also obtained approvals (RM2022/09056 dated 7 June 2022 and
RM2020/53583 dated 7 October 2020) and carried out initial works for the clearing of
vegetation for a buffer zone for fire mitigation and access track upgrades on the
Council Land.

c The owner has agreed to undertake the following on the Council Land for the period
that the aged care facility is being operated on the Subject Site and on the terms set
out in this deed:

(i)

(il)

(ill)

(iv)

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construct the access track and causeway crossings / stormwater discharge
points upgrades on the Council Land generally in accordance with drawings
General Arrangement Plan STP220347 C102 A dated Jan 2023, Stormwater
Layout STP22-0347 SKO1 dated 21.03.23, Earthworks / Track Layout
STP22-0347 SKO3 dated 23.03.23, Causeway Crossing 1 STP22-0347
SKOS dated 03.05.23, and Causeway Crossing 2 STP22-0347 SKO6 dated
03.05.23, prepared by STP Consultants;

maintain the access track and causeway crossings / stormwater discharge
paints on the Council Land a minimum of:

(A) Fire trail (including the track, causeway crossings and stormwater
discharge): every 3 months

(B) Fuel Reduction Zone (FRZ): every 3 years
(C) Slashing/mowing: every 3 months

maintain the vegetation buffer zone along the north-eastern and south-
eastern boundary of the Subject Site on the Council Land, refer to
RM2022/09056 dated 7 June 2022 and see also RM2020/53583 dated 7
October 2020:

(A) north-eastern boundary: maximum total width of 20m comprising
15m as a fire access trail / fuel free zone width and 5m fuel
reduction zone width;

(B) south-eastern boundary: maximum total width of 15m comprising a
15m fuel free zone width.

obtain the necessary owners’ consent and subsequent approvals (e.g.

Operational Works) prior to accessing and undertaking works on the Council
Land.

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(v) prepare a Maintenance Plan and Construction Management Plan for the
works being undertaken on the Council Land to be approved by Council prior
to the commencement of works.

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) a clause is to a clause in this deed; and

(ii) the singular includes the plural and vice versa; and

(iii) 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, amendments, re-enactments or

replacements of the legislation; and
(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

(vili) a day is a Calendar Day

(b) 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.

(c) 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.

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(d) 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.

(e) 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.

(f) 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.

Definitions

In this deed:

“Act” means the Planning Act 2016 (the “Act’).

“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 4 and its
predecessors, successors, transferees and assigns.

“Council Land” means the land described in item 7 of Schedule 1,
“development’ has the meaning given in the Act.

“Infrastructure Contribution” mean the maintenance contribution 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 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.

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1.5

1.6

2.1

2.2

2.3

2.4

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“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 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.

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.

Rights and Obligations

Where rights 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.

INFRASTRUCTURE DEED

Application of Act

This Deed constitutes an infrastructure agreement under the Act.

Warranty of Ownership

The owner warrants that, at the time of signing this agreement, it is the owner of the
land.

Deed to bind successors in title

The owner consents to the obligations 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.

Deed conditional upon approval of Development Application

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This Deed is conditional upon the approval of the owner's request for a minor change
in respect of the development on the Subject Site.

3. INFRASTRUCTURE CONTRIBUTION
3.1 Infrastructure Agreement overrides Development Permit

This Deed applies to the extent of any inconsistency with any development permit
and the Infrastructure Contribution payable hereunder is in additionto any conditions
of, or payments required by, any development permit and/or any infrastructure
charges notice given in respect of the development.

3.2 Infrastructure Contribution

On and from satisfaction of clause 2.4, but only while the aged care facility is being
operated on the Subject Site, the owner must at its cost:

(i) construct the access track and causeway crossings / stormwater discharge
points upgrades on the Council Land generally in accordance with drawings
General Arrangement Plan STP220347 C102 A dated Jan 2023, Stormwater
Layout STP22-0347 SKO1 dated 21.03.23, Earthworks / Track Layout
STP22-0347 SKO3 dated 23.03.23, Causeway Crossing 1 STP22-0347
SKO5 dated 03.05.23, and Causeway Crossing 2 STP22-0347 SKO6 dated
03.05.23 prepared by STP Consultants;

(ii) maintain the access track and causeway crossings / stormwater discharge
points on the Council Land a minimum of:

(A) Fire trail (including the track, causeway crossings and stormwater
discharge); every 3 months

(B) Fuel Reduction Zone (FRZ): every 3 years
(C) Slashing/mowing: every 3 months

(iii) maintain the vegetation buffer zone along the north-eastern and south-
eastern boundary of the Subject Site on the Council Land, refer to
RM2022/09056 dated 7 June 2022 and see also RM2020/53583 dated 7
October 2020:

(A) north-eastern boundary: maximum total width of 20m comprising
15m as a fire access trail / fuel free zone width and 5m fuel
reduction zone width;

(B) south-eastern boundary: maximum total width of 15m comprising a
15m fuel free zone width.

(iv) obtain the necessary owners’ consent and subsequent approvals (e.g.
Operational Works) prior to accessing and undertaking works on the Council
Land.

(v) prepare a Maintenance Plan and Construction Management Plan for the

works being undertaken on the Council Land to be approved by Council prior
to the commencement of works.

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5.2

6.2

7.2

7.3

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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.

DEFAULT BY OWNER OR APPLICANT

Rights of the Council on default

If the owner fails to duly perform and fulfil any or all of its obligations under Clause 3

the Council may recover from the applicant the whole or any amount of the

Infrastructure Contribution not paid and its costs of recovery.

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 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.

RECONFIGURATION OF THE SUBJECT SITE

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.

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.

SERVICE

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.

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.

Proof of service

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7.4

8.1

8.2

8.3

8.4

8.5

8.6

8.7

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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.

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) A party receiving a Notice is not obliged to enquire as to the authority of the
person signing the Notice.

MISCELLANEOUS
Payment of costs

The owner shall pay the Council’s legal costs of and incidental to the preparation and
execution of this Deed on a solicitor own client basis.

Time
Time is, in all cases, of the essence.
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.

Waiver

No waiver by the Council of any breach by the 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.

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.

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.
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

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(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.

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SCHEDULE 1

Deed Details

ITEM 1

ITEM 2

ITEM 3

ITEM 4

ITEM 5

ITEM 6
ITEM 7
ITEM 8

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Date

Name of Deed

Council

owner

Subject Site

Special Conditions
Council Land

Development Application
and Permit

The Commencement Date

Infrastructure Deed in respect of
construction of access track crossing,
maintenance of vegetation buffer zone and
access track (including crossing) for the
Giraween nature refuge and the aged care
facility

Noosa Shire Council

9 Pelican Street, Tewantin in the State of
Queensland

PO Box 141, Tewantin QLD 4565

Ozcare

ACN 072 422 925

66 River Terrace
Kangaroo Point QLD 4169

Lot 9 on RP225312, title reference 17299066
nil
Lot 1 on SP239726, title reference 50928874

132001.210127.3 - Minor Change to
Existing Approval

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EXECUTED AS A DEED

This deed dated this day of 2023

BETWEEN NOOSA SHIRE COUNCIL a Local Government duly constituted under the
provisions of the Local Government Act 2009

(“Council”)

AND OZCARE ACN 072 422 925
(‘the owner’)

 

 

 

SIGNED SEALED AND DELIVERED by the )
delegated officer for and on behalf of the )
NOOSA SHIRE COUNCIL ) e naar
) Nay Seulh shock.
) Name ° J
)
) Qi-0% -dO2S
) Dated

EXECUTED by the Owner OZCARE ACN 072
422 925 by its authorised signatory:

 

Signaturejof Authorised Signatory

Dinuwe  Cucistie — David.
Name of Authorised Signatory

iglos]aon3 _
Date

~rrereatreaereeTSr ES

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