2.1 The DA is accompanied by a Conservation Management …€¦ · Blacktown Local Planning Panel...

Attachment 1 Blacktown Local Planning Panel Report: DA-16-04366

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Location map

LOCATION OF SUBJECT SITE

Location of Clydesdale House


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Aerial image (as at July 2018)

Location of Clydesdale House

Location of site


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Detailed information on proposal and DA submission material

1 Overview 1.1 The Development Application (DA) was lodged by Craig and Rhodes to obtain consent for

Torrens title subdivision to create 5 super lots at 1270 Richmond Road, Marsden Park.

1.2 The area zoned for residential use is proposed to be divided into 3 superlots representing the first 3 stages of development. Areas zoned for public recreation and most of those zoned for infrastructure will become superlot 5 to be later dedicated to and managed by Blacktown City Council. The remainder of the site would make up superlot 4 which includes the 10 hectares of Clydesdale House and its curtilage.

1.3 The size and zoning of each lot will be as follows:

Lot no. Size Zoning 1 19.032 ha R2 Low Density Residential

2 16.571 ha R3 Medium Density Residential (part) R2 Low Density Residential (part)

3 14.467 ha R2 Low Density Residential

4 151.221 ha E2 Environmental Conservation (part) E3 Environmental Management (part) RE2 Private Recreation (part)

5 14.728 ha RE1 Public Recreation (part) SP2 Local Drainage (part)

1.4 The proposed subdivision does not seek approval for any works or development on the site, but rather maps out the staging for future residential subdivision and development across the site commensurate with its zonings.

1.5 A temporary arrangement is in place to access the site from the south in order for bulk earthworks to take place. During earthworks, the site is accessed using the existing approved haulage road that services the southern neighbouring Elara subdivision from Richmond Road.

1.6 The proposed subdivision will facilitate connections through Clydesdale Estate from Richmond Road to future stages of development on the site via the Right of Carriageway, and later via subdivisional roads that will link to roads in the Elara Estate (currently under development to the south of the site).

2 Heritage 2.1 The DA is accompanied by a Conservation Management Plan (CMP) that has been

endorsed by the Heritage Council of NSW. The purpose of the CMP is to manage Clydesdale’s transition to the next stage of development while conserving the significant heritage features of the site.

2.2 The Conservation Management Plan will ensure that the restoration, conservation and adaptive reuse of Clydesdale House and other ancillary heritage items are undertaken as part of any residential development within Clydesdale Estate’s existing boundaries.

Blacktown Local Planning Panel Report: DA-16-04366 Attachment 4 | Page 2 of 3

2.3 Conservation of key site elements will be done in stages, each governed by a Schedule of Conservation Works. The first Schedule will deal with temporary protective works, which will have to be completed prior to the release of any Subdivision Certificate for this DA.

2.4 The Office of Environment and Heritage has provided General Terms of Approval for this development. Our Heritage Officer has also provided conditions of consent supporting this subdivision into 5 superlots on the basis of the CMP’s elements being legally mandated through a Voluntary Planning Agreement.

3 Voluntary Planning Agreement 3.1 A Voluntary Planning Agreement will be entered into between the developer and Council.

The Agreement has not yet been executed; therefore conditions of consent have been included that require its execution prior to the issue of the Subdivision Certificate for this DA.

3.2 The purpose of the Agreement is to ensure that staged conservation works to Clydesdale House and other heritage items are done by the developers in line with the Conservation Management Plan’s schedule of works. No residential Subdivision Certificates or Occupation Certificates linked to stage 1, 2 or 3 (whichever occurs sooner) will be released until such time as we are satisfied that the works have been carried out. These milestones will be closely monitored by a suitably qualified and experienced heritage consultant.

3.3 The stages of work will be linked in with the phases of restoration as follows:

DA Phases of conservation works

Bulk earthworks –

5 superlot subdivision SCW 1 Temporary protective works:

• Commencement in bulk earthworks stage • Completion at Subdivision Certificate for 5 lot

subdivision

Lot 1 – 285 lot subdivision SCW 2 60% external work which must be completed prior to issue of SC or OC for Lot 1 (whichever certificate occurs first)

40% internal work which must be completed prior to issue of SC or OC for Lot 3 development or Lot 2 development (whichever lot is developed first)

Lot 3 – 152 lot subdivision

Lot 2 – Residential flat buildings SCW3 To be completed for Lot 3 or Lot 2 development (whichever occurs last)

Lot 5 – Drainage/Open space N/A

Phases of conservation works:

SCW 1 Temporary protective works (as defined in the CMP)

SCW 2 Essential works, regardless of future use, to ‘lock up’ stage

SCW 3 Heritage conservation works to provide finished adapted buildings or places, the detailed design and costing of an adaptive re-use project, and the adaptive re-use and securing of an end user


3.4 On this basis, the 5 superlot Subdivision Certificate will only be released when the temporary protective works for Clydesdale House listed in Schedule of Conservation Works 1, including emergency maintenance and repair works, have been carried out to Council, the Office of Environment & Heritage and the appointed heritage consultant’s satisfaction.

4 Proposed Section 88B Instrument for access, easements and restrictions

4.1 As part of the proposed plan of subdivision, several easements and restrictions are proposed pursuant to Section 88B of the Conveyancing Act. These are set out below.

Restriction no. Purpose Right of Carriageway 16.5 m wide (A) burdening Lots 5 and 1 – 3, benefiting each other and Lot 4

Provide access to Lots 1, 3 & 4 from Richmond Road

Easement for excavation of variable width (B) Permit excavation of the flood prone zoned rural Lot 4 to provide fill on Lots 1 - 5, subject to separate Development Application in line with Flood Study

Easement for earthworks of variable width (C) Permit earthworks on Lots 1 - 5 including use of fill from Lot 4 to facilitate future subdivision works on Lots 1 - 5, subject to separate Development Application

Easement for access (D) for whole of lot

Permit unrestricted access across each lot and benefitting and burdening each lot as deemed necessary

Easement for drainage of water (E) for whole of lot

Permit drainage works across each lot, subject to separate Development Application

Easement for existing transmission line (F) 70 m wide

Maintain access to existing high voltage power lines that traverse the site

Restriction on use of land (G) for whole of lot Identifies Blacktown City Council as benefitted authority, restricting development of all Lots 1 - 5 subject to compliance with the Voluntary Planning Agreement relating to State heritage item Clydesdale House and associated buildings

PLAN FORM 2 A2

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WARNfNG: CREASING OR FOLDING WILL LEAD TO REJECTION

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PLAN NOT FOR LPI NSW INVESTIGATION

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111 PRELIMINARY PLAN ONLY LOT DIMENSIONS AND AREAS SUBJECT TO SURVEY & REGISTRATION OF THE FINAL PLAN AT LPI NSW

D. P. 1 1 9 O 5 1 D

EASEMENT LOCATIONS & WIDTHS ARE INDICATIVE ONLY

10 20 JO 40 50 Tableo1 mm 80 90 100 110 1 130 140

Surveyor: PETERJS'IEWART Date of Survey: Surveyor's Ref: 1782 • PROCEDURAL

PLAN OF SUBDIVISION OF LOT 2 D.P.260476

LGA: BLACKTOWN Locality: MARSDEN PARK Subdivision No. �nnrno!mf,floduciJonRmk>1: 5000

SCHEDULE OF CURVED BOUNDARIES

No. BEARING CHORD ARC RAO I US 1 33"30'10" 29. 205 29. 235 190. 1 2 23•59 • oo· 72.145 72,86 149. 9 3 346'14'50" 86-78 89. 97 159 .4 4 43'56 '20" 65,495 71.6 49 .4 5 92'16'50" 21.23 21.28 89 ,4 6 56'01'00" 4.92 5 .415 3. 6 7 22"52'50" 6,91 6,945 20

19•29 '30" 37 .15 37,545 75 9 38'14'40" 28 .03 29. 7S5 2S

10 103•4a•1.o" 52.49 55 .225 so. 275

SCHEDULE OF LINES

No. BEAR ING DISTANCE 11 174'25'20" 12.335 12 160'32'10" 61. 825 13 7"59'50" 18.975 11. 277"58'00" 86. 77 15 2a•51 • so· 25 .21 16 103"05'00" 82. 275 17 48'26'40" 93,075 18 136"07'30" 77 .34 19 137•34•10· 74. 98 20 138"59'30" 74. 98 21 140'24'50" 74. 98 22 1z.1•50•10· 74.98 23 188'03'30" 30 .48 24- 279•34•40• 29 .2

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26 331"30'50" 0 ,385 27 2•2s·oo· 40. 96 28 32'50'00" 34.2 29 4"09'20" 37,725 30 45"15'40" 24 .295

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Registered

D.P. DRAFT

Attachment 5Blacktown Local Planning Panel Report: DA 16-04366


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Assessment against planning controls

1 Environmental Planning and Assessment Act 1979

The development satisfies the matters for consideration under section 4.15 of the Act as detailed below.

Heads of Consideration s4.15

Comment Complies

a. The provisions of:

(i) Any environmental planning instrument (EPI)

The proposal is considered to be consistent with the relevant environmental planning instruments. State Environmental Planning Policy (Sydney Region Growth Centres) 2006 applies to the site. The proposed development is a permissible land use within the R2 Low Density Residential, R3 Medium Density Residential, RE1 Public Recreation, RE2 Private Recreation, SP2 Infrastructure – Local Drainage, SP2 Infrastructure – Classified Road, E2 Environmental Conservation and E3 Environmental Management zones. The proposed development satisfies the zone objectives outlined under the Growth Centres SEPP, and it is compliant with the relevant provisions established under the SEPP.

Yes

(ii) Any proposed instrument that is or has been the subject of public consultation under this Act

A Discussion Paper on the proposed draft SEPP to protect designated future transport and freight corridors, including the Outer Sydney Orbital Corridor, was placed on public exhibition earlier in 2018 and comments were sought. The exhibition period has closed and submissions are now being considered by the NSW Government. The subject site is situated within the path of the proposed Outer Sydney Orbital Corridor. Provisions applicable to the development include: • subdivision is not permitted within the Corridor. As a

result, the DA plans were amended so that no lot boundary will cut through the Corridor

• development that proposes excavation within 25 m of the Corridor needs to be referred to Transport for NSW. Although excavation is not proposed as part of this particular DA, it along with the DAs linked to it were referred to Transport for NSW, which raised no objection to the DA proposals.

Yes

(iii) Any development control plan (DCP)

The Blacktown City Council Growth Centres Precincts Development Control Plan 2018 applies to the site. The proposed development is compliant with the controls established under the DCP.

Yes

(iiia) Any planning agreement that has been entered into

A Voluntary Planning Agreement will be entered into between the owners of the land and Council and must be registered on title with NSW Land Registry Services prior to the release of this Subdivision Certificate.

Yes

(iv) The regulations The DA is compliant. Yes


Heads of Consideration s4.15

Comment Complies

b. The likely impacts of the development, including environmental impacts on both the natural and built environments, and social and economic impacts on the locality

The subdivision is only a paper plan, but it will fragment the land and possible ownership of the land. The impact on the natural and built environment will be mitigated by the State Heritage Register curtilage of Clydesdale remaining unchanged. All development within the curtilage warrants a through assessment by the Office of Environment and Heritage.

Yes

c. The suitability of the site for the development

The proposed 5 lot subdivision is merely a facilitating plan for future developments under separate DAs on land that is appropriately zoned for that purpose. The land is partially flood affected, mostly in the environmental and residential zones, and will be later filled where required to meet flood level requirements on the basis of balanced cut and fill. The land is affected by the draft Outer Sydney Orbital Corridor and this Corridor will be taken into consideration at the adaptive reuse stage of Clydesdale House in proposed Lot 4. Noise levels from future use of the land will have negligible effect on the surrounding area. Any impact on items of heritage significance will be mitigated via the Conservation Management Plan and Voluntary Planning Agreement, linked to the various stages of development of the site. Therefore, it is considered that the proposal will not result in any significant adverse impacts in the locality.

Yes

d. Any submissions made in accordance with this Act, or the regulations

The application was placed on public notification from 14 February to 16 March 2018. Council received 1 submission from the Blacktown Historical Society objecting to the proposal. The issues raised relate to general over-development in the area and that the proposal would remove the uniqueness of Clydesdale and its surrounding curtilage. To address the Society’s concerns, the applicant made a presentation on 11 July 2018 to all relevant local historical societies and Council officers. The feedback from the historical societies received at the presentation was positive and the concerns raised are considered to have been addressed subject to conditions of consent.

Yes

e. The public interest

The proposal is considered to be compatible with the intended future use of the land given its residential zoning on 3 of the lots proposed and the objectives of the Growth Centres SEPP and DCP. The proposal will facilitate the restoration and reuse of a landmark heritage site in the community and on this basis the development is considered to be in the public interest.

Yes


2 Sydney Regional Environmental Plan No. 20 – Hawkesbury-Nepean River

A consent authority must take into consideration the general planning considerations set out in Clause 5 of Sydney Regional Environmental Plan No. 20 and the specific planning policies and recommended strategies in Clause 6.

The planning policies and recommended strategies under this Plan are considered to be met through the development controls of the Growth Centres SEPP. The development complies with the development standards and controls established within the Growth Centres SEPP, to enable the orderly future development of the site that will be approved under separate DAs to this subdivision DA. Therefore, the proposal is considered to satisfy Clause 4 of SREP 20.

3 State Environmental Planning Policy (State and Regional Development) 2011

The Blacktown Independent Planning Panel is the consent authority as the DA involves a sensitive development because the developer has offered to enter into a Voluntary Planning Agreement.

Council is responsible for the assessment of the Development Application, and determination is to be made by the Panel.

4 State Environmental Planning Policy No. 55 – Remediation of Land

SEPP 55 aims to ‘provide a State wide planning approach to the remediation of contaminated land’. Clause 7 requires a consent authority to consider whether the land is contaminated and if it is suitable or can be remediated to be made suitable for the proposed development, prior to the granting of development consent.

A Preliminary Stage 1 Contamination Assessment, Geotechnical Investigation & Salinity Assessment were all prepared for the site by Geotechnique Pty Ltd. Soil testing was done in these assessments that found that the site is considered suitable for the proposed residential subdivision, subject to implementation of the recommendations.

The recommendations will be implemented as part of other Development Applications, including residential subdivision involving works on the site to ensure the land is suitable for residential occupation.

This application for 5 lot subdivision does not propose or require any physical works, nor change in the existing use as grazing land, on which basis it is considered suitable in its current state to permit the subdivision pursuant to Clause 7 of the SEPP.

For the purposes of this subdivision, a Section 88B instrument will be included on title pre-warning any purchaser of the land that requirements, including site validation to National Environmental Protection Measures (NEPM) 2013 Guidelines will be needed upon redevelopment of any of the lots. This will be included as a condition on the consent.

5 State Environmental Planning Policy (Sydney Region Growth Centres) 2006

Appendix 12 of the SEPP, Blacktown Growth Centres Precinct Plan, applies to the site.

The tables below provide a summary assessment of the General and Precinct specific development standards established within the Growth Centres SEPP and the proposal’s compliance with these standards.


The development complies with the development standards contained within the SEPP.

5.1 General controls within main body of the SEPP

SEPP requirement Complies

2 Aims of Policy

a) to co-ordinate the release of land for residential, employment and other urban development in the North West Growth Centre, the South West Growth Centre and the Wilton Priority Growth Area

b) to enable the Minister from time to time to designate land in growth centres as ready for release for development

c) to provide for comprehensive planning for growth centres d) to enable the establishment of vibrant, sustainable and liveable

neighbourhoods that provide for community well-being and high quality local amenity

e) to provide controls for the sustainability of land in growth centres that has conservation value

f) to provide for the orderly and economic provision of infrastructure in and to growth centres

g) to provide development controls in order to protect the health of the waterways in growth centres

h) to protect and enhance land with natural and cultural heritage value i) to provide land use and development controls that will contribute to the

conservation of biodiversity.

Yes. The proposed 5 lot subdivision will facilitate future residential subdivision and development. This will be done under separate DAs that will allow the delivery of a neighbourhood which will be supported by appropriate infrastructure as envisaged in the SEPP. The proposal is therefore consistent with these aims.

Part 5 Development controls – flood prone and major creek land Part 6 Development controls – vegetation Part 7 Development controls – cultural heritage landscape area

Cl.19 Development on flood prone and major creeks land—additional heads of consideration

The site is flood prone. Bulk earthworks measures are proposed under a separate DA for the site to raise levels above the 1:100 year flood level. Given the proposed subdivision into 5 residue lots does not create new residential lots, no further flooding assessment is required as part of this DA.

Yes

Appendix 12: Blacktown Growth Centres Precinct Plan

2.3 Zone objectives and Land Use Table

R2 and R3 land: The proposed subdivision will facilitate future residential development under separate DAs, which is consistent with the objectives of the R2 and R3 zones. The site is in close proximity to future commercial and business development and public transport, making local employment opportunities accessible for future residential development. RE1 and RE2 land: Land zoned for both public and private recreation purposes is designed to be contained in single lots so that it is retained in single ownership. The RE1 land towards Richmond Road is contained in proposed Lot 5, while the RE2 land contains the inner curtilage area of Clydesdale House within proposed Lot 4. Future DAs for each lot will include details of recreational development and uses consistent with these zones. As the proposal does not

Yes


SEPP requirement Complies

involve any works, the proposal is consistent with these objectives. SP2 land: The proposed subdivision would facilitate orderly delivery of land for future drainage infrastructure and road widening. Future residential subdivision proposed under separate DAs will include details of these works. As the proposal does not involve any works for drainage or access, the proposal is consistent with these objectives. E2 and E3 land: The proposed subdivision would facilitate the protection of environmental zoned lands. The proposal does not involve any works within these lands and drainage works will form part of future DAs over the site. Therefore, the proposal is considered to be consistent with these objectives.

4.1 Minimum subdivision lot size

As per the Lot Size Map, the following minimum lot sizes apply: • For land in the E2 and E3 zones a minimum lot size of

150 hectares applies for subdivision. Proposed Lot 4 that includes these zones will be 151.22 hectares and complies. No subdivision is proposed within the E2 and E3 zoned land, rather this land is contained in its entirety in proposed Lot 4 in order to be held in one ownership.

• For land in the R2 zone a minimum lot size of 600 m² applies for subdivision. Proposed Lot 3 and Lot 1 will be 14.467 hectares and 19.032 hectares respectively and comply.

No minimum lot size is provided on the Lot Size Map for land in the R3 zone. The area of the R3 land is approximately 13 hectares.

Yes

6 Blacktown City Council Growth Centre Precincts Development Control Plan 2018 (Growth Centre DCP)

The Growth Centre DCP applies to the site. The table below outlines the proposal’s compliance with the controls established in the DCP.

6.1 Part 1.0 – Introduction

DCP requirement Proposal Complies

1.2 Purpose of this plan

Ensure the orderly, efficient and environmentally sensitive development of the Precincts as envisaged by the North West Growth Centre Structure Plan and State Environmental Planning Policy (Sydney Region Growth Centres) 2006 (the Growth Centres SEPP).

The proposal will facilitate the orderly development of the precinct as envisaged in the Growth Centres SEPP.

Yes


6.2 Part 2.0 – Precinct Planning Outcomes (from main body of DCP)

2.2 Indicative layout plan

DA is to be generally in accordance with the Indicative Layout Plan

No roads are proposed in this DA, only temporary rights of carriageway which will be extinguished when dedicated public roads take their place. The Marsden Park Indicative Layout Plan (ILP) applies to the site. Separate DAs for residential subdivision and roadworks have been submitted to Council to address the ILP. Detailed consideration of the ILP is not required as part of assessing the proposed subdivision since it does not propose residential subdivision works. The boundaries of proposed Lots 1 – 3 do however straddle the SP2 infrastructure zone for orderly staging of future subdivision.

Yes

2.3 Subdivision site analysis

The following clauses must be addressed:

2.3.1 Flooding and water cycle management

To manage the flow of stormwater from urban parts of the Precinct to replicate, as closely as possible, pre-development flows. To minimise the potential of flooding impacts on development.

The site is flood prone. Bulk earthworks measures are proposed under a separate DA for the site to raise levels above the 1:100 year flood level. Given the proposed subdivision into 5 residue lots does not create new residential lots, no further flooding assessment is required as part of this DA.

Yes

2.3.2 Salinity and soil management

Land within areas of potential salinity and soil aggressivity risk must be accompanied by a salinity report. A qualified person is to certify the project upon completion of the works. The Salinity Management Plan is to be in accordance with Appendix C of the DCP. All works are to comply with the plan.

A Preliminary Stage 1 Contamination Assessment, Geotechnical Investigation & Salinity Assessment were all prepared for the site by Geotechnique Pty Ltd. Soil testing was done in these assessments that found that the site is considered suitable for the proposed residential subdivision, subject to implementation of the recommendations. The recommendations will be implemented as part of other DAs for residential subdivision involving works on the site, to ensure the land is suitable for residential occupation.

Yes


This DA for 5 lot subdivision does not propose or require any physical works. On this basis it is considered suitable in its current state to permit the subdivision. These lots will be subject to a restriction as to user requiring any future development of the residue lots comply with NEPM 2013 guidelines.

2.3.3 Aboriginal and European heritage

Are there any areas of Aboriginal heritage value within or adjoining the site, and is the site identified on the European cultural heritage sites figure? If so, a report is required from a qualified consultant.

The development is to occur on the site of a State-listed heritage item, Clydesdale House. The proposed development is classified as ‘Integrated Development’ under Section 91 of the Environmental Planning and Assessment Act 1979. This is because the development requires activity approval under the Heritage Act 1977. A Conservation Management Plan was prepared as a result and was endorsed by the Office of Environment and Heritage (OEH) in December 2017. OEH has since provided General Terms of Approval for the development. A Voluntary Planning Agreement will be entered into between the developer and Council that will ensure that emergency maintenance and repair works to Clydesdale House listed in the Conservation Management Plan’s Schedule of Works are completed prior to release of the Subdivision Certificate for this DA. As for Aboriginal Heritage, no works are proposed as part of this subdivision. Statutory procedures will be followed during the future residential construction period, including all required notifications and actions.

Yes

2.3.4 Native vegetation and ecology

Native trees/vegetation to be retained where possible. Is the site identified on the Riparian Protection Area figure. If so, native vegetation to be managed in accordance with Appendix B of the DCP. Does the site adjoin land zoned E2? A landscape plan is to be submitted with the DA. Trees to be selected from Appendix D of the DCP.

No tree removal or physical works are proposed as part of this this DA.

N/A


2.3.5 Bushfire hazard management

Development is to be consistent with Planning for Bushfire Protection 2006

The property is not bushfire prone. Yes

2.3.6 Site contamination

All subdivision DAs to be accompanied by a Stage 1 Preliminary Site Investigation. Where required a Stage 2 investigation is to be carried out.

A Preliminary Stage 1 Contamination Assessment, Geotechnical Investigation & Salinity Assessment were all prepared for the site by Geotechnique Pty Ltd. Soil testing was done in these assessments that found that the site is considered suitable for the proposed residential subdivision, subject to implementation of the recommendations. The recommendations will be implemented as part of other DAs for residential subdivision involving works on the site, to ensure the land is suitable for residential occupation. This DA for 5 lot subdivision does not propose or require any physical works. On this basis it is considered suitable in its current state to permit the subdivision. These lots will be subject to a restriction as to user requiring any future development of these residue lots comply with NEPM 2013 guidelines.

Yes


Blacktown Local Planning Panel Report – DA-16-04366 Attachment 7 | Page 1 of 1

Issues raised by the public and Council response

1 Name of submitter Blacktown and District Historical Society Inc.

2 Consideration of issues raised

Issue Planning comment/response

Objection to any proposal that would remove the uniqueness of ‘Clydesdale’ and its surrounding curtilage which has remained for 205 years.

In order to address Blacktown Historical Society’s concerns, the applicant did a presentation on 11 July 2018 to all our Historical Societies and relevant Council officers. The feedback received from the Historical Societies at the presentation was positive all round and this concern, as well as those listed below, are considered to have been addressed at the presentation subject to conditions in any consent granted. Furthermore, a CMP has now been endorsed by OEH that will be complied with at designated stages of development. The CMP will ensure the heritage item of Clydesdale is restored, maintained and conserved. A VPA between the developer and Council will further enforce the undertaking of the required Schedule of Conservation Works contained in the CMP.

Major over-development on the scale proposed (now and in the future) will impact on the creek system (South and Little Creek) as well as on Aboriginal heritage. Hundreds of new homes will badly impact on the traffic problems that already exist on Richmond Road and impact on existing infrastructure in the Blacktown district.

No actual works are proposed in this DA. Future DAs will permit uses in the zone but these will have to include measures to mitigate impacts on Clydesdale House in terms of view lines and scale in accordance with OEH requirements.

The area is a noted flood prone area and major ground works and drainage and then residential development will, in time, have disastrous effects on the ecosystem of the creeks and the fauna of that area.

No actual works are proposed in this DA. Future DAs and bulk earthworks propose net cut and fill works over the entire land, cutting into the floodplain in the rural part of the site to raise the residential component above the 1 in 100 year floodline. Recommendations and mitigation measures proposed in Stormwater reports prepared by qualified and experienced consultants will ensure that the development will not have an adverse impact on the ecosystem.

Sparke Helmore Lawyers

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Contents Parties 4

Background 4

Operative part 4

1 Definitions 4

2 Interpretation 7

3 Planning Agreement under the Act 8

4 Application of this agreement 8

5 Operation of this Agreement 8

6 Contributions to be made under this agreement 8

6.1 Works 8

6.2 Delivery of Works 9

6.3 Completion of the Works 9

6.4 Failure to carry out Works 10

6.5 Defects Liability Period 10

7 Deferral of Works 11

8 Application of s7.11, s7.12 and s7.24 of the Act to the Development 12

9 Registration of this agreement 12

9.1 Registration of this Agreement 12

9.2 Removal from Register 13

10 Review of this agreement 13

11 Dispute Resolution 13

11.1 Reference to Dispute 13

11.2 Notice of Dispute 13

11.3 Representatives of Parties to Meet 13

11.4 Further Notice if Not Settled 14

11.5 Mediation 14

11.6 Expert determination 15

11.7 Litigation 15

11.8 No suspension of contractual obligations 15

12 Security 15

13 Enforcement 16

13.1 Default 16

13.2 Council may carry out Works 16

Draft


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13.3 Restriction on the Issue of Certificates 16

13.4 General Enforcement 16

14 Assignment and Dealings 17

14.1 Assignment 17

14.2 Transfer of Land 17

15 Approvals and consents 17

16 No fetter 17

16.1 Discretion 17

16.2 No fetter 18

17 Notices 18

17.1 Notices 18

18 General 19

18.1 Relationship between parties 19

18.2 Time for doing acts 19

18.3 Further assurances 19

18.4 Variation 19

18.5 No assignment 19

18.6 Counterparts 19

18.7 Legal expenses and stamp duty 19

18.8 Entire agreement 20

18.9 Representations and warranties 20

18.10 Severability 20

18.11 Invalidity 20

18.12 Waiver 20

18.13 GST 21

18.14 Governing law and jurisdiction 21

18.15 Explanatory Note 21

Schedule 1 Developer Parties 22

Schedule 2 Subdivision Plan 23

Schedule 3 Scope and timing of completion of works to the “Clydesdale” estate24

Schedule 4 Summary of requirements (section 7.4) 26

Executed as an agreement 27

Annexure A Conservation Management Plan 31

Draft


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Agreement Date

Parties

First party Name Blacktown City Council (Council)

ABN 18 153 831 768

Contact The General Manager

Telephone (02) 9838 6000

Second party Name The parties listed in Schedule 1 (Developer

Parties)

Contact

Telephone

Background A. The Developer Parties own the Land.

B. The Developer Parties have made a Development Application to the Council for Development Consent to carry out the initial subdivision of the Land to create five residue lots.

C. The Developer Parties have offered to enter into this agreement to make contributions for public purposes in connection with the Development.

Operative part 1 Definitions

In this agreement, unless the context indicates a contrary intention:

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

Address means a party’s address set out in the Notices clause of this agreement;

Approval means any certificate, licence, consent, permit, approval or other requirement of any Authority having jurisdiction in connection with the activities contemplated by this agreement;

Authority means any government, semi-governmental, statutory, administrative, fiscal or judicial body, department, commission, authority, tribunal, public or other person;

Business Day means a day on which banks are open for general banking business in Sydney, excluding Saturdays and Sundays;

Complete with respect to an item of the Works means that particular item has been completed to the standard required under this agreement.

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Construction Certificate has the same meaning as in the Act;

Defects means Works containing a material defect which:

(a) adversely affects the ordinary use and/or enjoyment of the relevant Works; or

(b) will require maintenance or rectification works to be performed on them at some time in the future as a result of the existence of the defect;

Defects Liability Period means twelve (12) months after the date an item of Work is Completed.

Developer Parties means the parties in Schedule 1

Development means the proposed subdivision of the Land to create five lots as generally shown on the Subdivision Plan and the future staged development of those five lots, including the Lot 1 Development, the Lot 2 Development and the Lot 3 Development;

Development Application has the same meaning as in the Act;

Development Consent has the same meaning as in the Act;

Essential Works means those Works described as Essential Works in the table in Schedule 3;

Fax Number means a party’s facsimile number set out in the Notices clause of this agreement;

Former Building and Subdivision Provisions has the same meaning as in clause 18 of the Environmental Planning and Assessment (Savings, Transitional and Other Provisions) Regulation 2017;

GST has the same meaning as in the GST Law;

GST Law has the meaning given to that term in A New Tax System (Goods and Services Tax) Act 1999 (Cth) and any other Act or regulation relating to the imposition of or administration of the GST;

Heritage Act means the Heritage Act 1977 (NSW);

Heritage CMP means the approved Heritage Conservation Management Plan Revision K for the Heritage Item, a copy of which is at Annexure A;

Heritage Works - Stage 1 means those Works described as Heritage Works - Stage 1 in the table in Schedule 3;

Heritage Works - Stage 2 means those Works described as Heritage Works - Stage 2 in the table in Schedule 3;

Heritage Conservation Works means those Works described as Heritage Conservation Works in SCW1 and SCW 2 in the Heritage CMP;

Heritage Consultant means an appropriately qualified and experienced consultant, appointed by the Developer Parties and approved by Council, for the purpose of clause 6.3. Council’s approval of the appointment shall not be unreasonably withheld.

Heritage Item means Clydesdale House, Cottage and Farm Landscape (as listed As State Heritage Item No. 00674) and Farmers Cottages and Barn (as listed in Schedule 5 of Appendix 12, Blacktown Growth Centres Precinct Plan, of the State Environmental Planning Policy (Sydney Region Growth Centres) 2006.

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Land means Lot 2 DP 260476, known as 1270 Richmond Road, Marsden Park NSW 2148;

Last Stage Development means the last stage of the Development, being the Lot 2 Development or the Lot 3 Development, whichever occurs last;

Lot 1 Development means the future development of that part of the Land generally comprising Proposed Lot 1 on the subdivision plan in Schedule 2, consisting of a land subdivision into approximately 285 residential land lots, residue lots, plus internal roads and services, two drainage channels and road intersection works at Richmond Road and Heritage Road;

Lot 2 Development means the future development of that part of the Land generally comprising Proposed Lot 2 on the subdivision plan in Schedule 2, consisting of approximately 10 super lots and approximately 20, 4 or 5 storey buildings with basement car parks;

Lot 3 Development means the future development of that part of the Land generally comprising Proposed Lot 3 on the subdivision plan in Schedule 2, consisting of a land subdivision into approximately 152 residential land lots, residue lots, plus internal roads and services;

Law means:

(a) any law applicable including legislation, ordinances, regulations, by-laws and other subordinate legislation;

(b) any Approval, including any condition or requirement under it; and

(c) any fees and charges payable in connection with the things referred to in paragraphs (a) and (b);

Occupation Certificate has the same meaning as in the Act;

Proposed Lot means a proposed lot in the initial Development of the Land to create five residue lots as shown in the Subdivision Plan;

Rectification Notice means a notice detailing:

(a) those aspects of the Works which have not been Completed (or which are Defective); and

(b) the work Council requires the Developer to carry out in order to rectify the deficiencies in those Works.

Register means the Torrens title register maintained under the Real Property Act 1900 (NSW);

Regulation means the Environmental Planning and Assessment Regulation 2000;

SCW 1 means temporary protective works required to make the items safe and prevent further deterioration or loss of significant fabric, or essential works which can be completed at this stage and as referenced in the Heritage CMP but revised and updated August 2018, Issue D.

SCW 2 means essential works needing to be done regardless of future use, as informed by investigations and reports called for in SCW1 and as referenced in the Heritage CMP but revised and updated July 2018, Issue D.

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SCW 3 means essential works needing to be done to provide finished, adapted buildings or places suitable for their future uses, as informed by the Heritage CMP.

Second Stage Development means the second stage of the Development, being the Lot 2 Development or the Lot 3 Development, whichever occurs first;

Subdivision Certificate has the same meaning as in the Act;

Subdivision Plan means the plan set out in Schedule 2;

Temporary Protective Works means those Works described as Temporary Protective Works in the table in Schedule 3;

Works means the works to restore the Heritage Item set out in Schedule 3.

2 Interpretation In this agreement, unless the context indicates a contrary intention:

(a) (documents) a reference to this agreement or another document includes any document which varies, supplements, replaces, assigns or novates this agreement or that other document;

(b) (references) a reference to a party, clause, paragraph, schedule or annexure is a reference to a party, clause, paragraph, schedule or annexure to or of this agreement;

(c) (headings) clause headings and the table of contents are inserted for convenience only and do not affect interpretation of this agreement;

(d) (person) a reference to a person includes a natural person, corporation, statutory corporation, partnership, the Crown and any other organisation or legal entity and their personal representatives, successors, substitutes (including persons taking by novation) and permitted assigns;

(e) (party) a reference to a party to a document includes that party’s personal representatives, executors, administrators, successors, substitutes (including persons taking by novation) and permitted assigns;

(f) (president, CEO or managing director) the president, CEO or managing director of a body or Authority means any person acting in that capacity;

(g) (requirements) a requirement to do any thing includes a requirement to cause that thing to be done, and a requirement not to do any thing includes a requirement to prevent that thing being done;

(h) (including) including and includes are not words of limitation, and a list of examples is not limited to those items or to items of a similar kind;

(i) (corresponding meanings) a word that is derived from a defined word has a corresponding meaning;

(j) (singular) the singular includes the plural and vice-versa;

(k) (gender) words importing one gender include all other genders;

(l) (parts) a reference to one or more things includes each part and all parts of that thing or group of things but nothing in this clause implies that part performance of an obligation constitutes performance of that obligation;

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(m) (rules of construction) neither this agreement nor any part of it is to be construed against a party on the basis that the party or its lawyers were responsible for its drafting;

(n) (legislation) a reference to any legislation or provision of legislation includes all amendments, consolidations or replacements and all regulations or instruments issued under it;

(o) (time and date) a reference to a time or date in connection with the performance of an obligation by a party is a reference to the time and date in , Australia, even if the obligation is to be performed elsewhere;

(p) (joint and several) an agreement, representation, covenant, right or obligation:

(i) in favour of two or more persons is for the benefit of them jointly and severally; and

(ii) on the part of two or more persons binds them jointly and severally;

(q) (writing) a reference to a notice, consent, request, approval or other communication under this agreement or an agreement between the parties means a written notice, request, consent, approval or agreement;

(r) (replacement bodies) a reference to a body (including an institute, association or Authority) which ceases to exist or whose powers or functions are transferred to another body is a reference to the body which replaces it or which substantially succeeds to its power or functions;

(s) (Australian currency) a reference to dollars or $ is to Australian currency;

(t) (month) a reference to a month is a reference to a calendar month;

(u) (year) a reference to a year is a reference to twelve consecutive calendar months;

3 Planning Agreement under the Act (a) The parties agree that this agreement is a planning agreement within the

meaning of section 7.4 of the Act.

(b) Schedule 4 of this agreement summarises the requirements for planning agreements under section 7.4 of the Act and the way this agreement addresses those requirements.

4 Application of this agreement This Agreement applies to:

(a) the Development, and

(b) the Land.

5 Operation of this Agreement This Agreement commences on the date it is executed.

6 Contributions to be made under this agreement 6.1 Works

(a) The Developer Parties must carry out the Works in accordance with:

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(i) this agreement;

(ii) any Development Consent granted for the Works;

(iii) any Approval issued by the NSW Office of Environment & Heritage;

(iv) the Heritage CMP;

(v) the requirements of any approval, consent, permission or licence issued by a relevant Authority;

(vi) any Australian standards and other laws applicable to the Work (as long as they do not compromise significant building aspects and fabric); and

(vii) in a proper and workmanlike manner, complying with current industry practice and standards relating to the Work.

(b) The parties agree and acknowledge that the Works serve the public purpose of protecting, maintaining and conserving a place with significant heritage value in accordance with the objects of the Heritage Act.

6.2 Delivery of Works

The Developer Parties must carry out each of the Works in accordance with the timing specified in Schedule 3.

6.3 Completion of the Works

(a) The Developer Parties will engage a Heritage Consultant to assess whether the Works are Complete, and must provide a completion notice to the Council within ten (10) Business Days of believing it has completed any item of the Works (Completion Notice).

(b) The Council must inspect the Works set out in a Completion Notice within twenty (20) Business Days of the receipt of the notice given under clause 6.3(a).

(c) Within the earlier of:

(i) ten (10) Business Days of inspecting the item of the Works set out in a Completion Notice; and

(ii) twenty (20) Business Days from the receipt of the relevant Completion Notice,

the Council must provide notice in writing to the Developer Parties that the Works set out in the Completion Notice:

(iii) have been Completed; or

(iv) have not been Completed, in which case the notice must also detail:

(A) those aspects of the relevant item which have not been Completed; and

(B) the work the Council requires the Developer Parties to carry out in order to rectify those deficiencies.

(d) If the Council does not provide the Developer Parties with notice in accordance with clause 6.3(c) the Works set out in the Completion Notice will be deemed to have been Completed on the date nominated in the Completion Notice.

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(e) Where the Council serves notice on the Developer Parties pursuant to clause 6.3(c)(iv) the Developer Parties must:

(i) rectify the deficiencies in that item in accordance with that notice within three (3) months from the date it is issued by the Council; or

(ii) serve a notice on the Council that it disputes the matters set out in the notice. If the Developer Parties serve a notice on the Council in accordance with this paragraph the dispute resolution provisions of this Agreement will apply.

(f) Where the Developer Parties rectify the Works in accordance with clause 6.3(e)(i) it must serve upon the Council a new Completion Notice for the item of the Works it has rectified (New Completion Notice).

(g) The provisions of this clause 6.3 apply to any New Completion Notice issued by the Developer Parties.

6.4 Failure to carry out Works

(a) If Council considers that the Developer Parties is in breach of any obligation under this agreement relating to the carrying out of any Work, including Work the subject of a Rectification Notice, Council may give the Developer Parties a notice under this clause 6.4.

(b) The notice may require the Developer Parties to:

(i) rectify the breach to Council’s satisfaction; and

(ii) immediately cease carrying out further work relating to the Work except to rectify the breach.

(c) A notice given under clause 6.4(a) must allow the Developer Parties no less than twenty eight (28) days (or such further period as Council considers reasonable in the circumstances) to rectify the breach.

(d) The Developer Parties must comply with any notice issued by Council under clause 6.4.

(e) Without limiting any other rights Council has to enforce this Agreement, if the Developer Parties do not comply with a notice given under clause 6.4(a) then Council may:

(i) carry out and Complete the Work the subject of the Developer Parties’ breach; and

(ii) the Developer Parties must pay the to Council its costs under Completing the Works itself within twenty eight (28) days of receiving a written demand for such payment by Council.

(f) For the purposes of clause 6.4(e), the costs which Council can recover include fees and charges incurred by Council, Council’s employees, agents and contractors, and legal costs and expenses.

6.5 Defects Liability Period

(a) During the Defects Liability Period, Council may give to the Developer Parties a Rectification Notice in respect of any Defects.

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(b) The Developer Parties must comply with a Rectification Notice at its own cost according to its terms and to the satisfaction of Council acting reasonably.

(c) Council may enter upon the Land for the purpose of satisfying the Rectification Notice where the Developer Parties have failed to comply with a Rectification Notice but only after giving the Developer Parties not less than ten (10) Business Days written notice of its intention to do so.

(d) If the Council elects to exercise the step-in rights granted to it under clause 6.5(c) then:

(i) the Council may:

(A) enter upon any part of the Land that it requires access to in order to satisfy the obligations of the Developer Parties in accordance with the Rectification Notice; and

(B) rectify the relevant Defects in accordance with the Rectification Notice; and

(ii) the Developer Parties must not impede or interfere with the Council in undertaking that work.

(e) Where Council exercises its step-in rights, all costs incurred by Council in rectifying the relevant Defects may be claimed by Council as a liquidated debt owed by the Developer Parties.

(f) By no later than ten (10) business days prior to the end of the Defects Liability Period:

(i) Council will undertake a final inspection of the Work; and

(ii) Council may either:

(A) by way of written notice to the Developer Parties, confirm that the Work is acceptable to Council acting reasonably; or

(B) issue a Rectification Notice to the Developer Parties if it identifies any part of the Work which is not acceptable to Council (acting reasonably).

(g) If Council issues a Rectification Notice under clause 6.5(d)(i)(B), the Developer Parties must comply with the Rectification Notice at its own cost according to its terms and to the satisfaction of the Council acting reasonably.

7 Deferral of Works (a) Notwithstanding any other provision of this agreement, if the Developer Parties

form the view at any time, that it is unable to complete all or part of an item, or items of Works (Deferred Works), by the time required under this agreement, then the Developer Parties may seek the Council’s approval to defer the relevant Works by providing written notice to the Council:

(i) identifying the relevant Work that the Developer Parties proposes to defer; and

(ii) identifying the anticipated time for Completion of the relevant Work.

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(b) The Council, at its absolute discretion, may give the Developer Parties a written notice stating whether or not it consents to the deferral of the Deferred Works, and where it does provide such consent Council will specify in the notice:

(i) the revised date for Completion required by Council; and

(ii) any conditions Council requires with respect to the deferral, including any requirement for additional security on account of that deferral.

(c) If the Council consents to the deferral of the Deferred Works, then the following applies:

(i) the Developer Parties must comply with any conditions required by Council under paragraph (b);

(ii) provided the Developer Parties satisfies those conditions, the Developer Parties will not be considered to be in breach of this agreement as a result of a failure to achieve Completion of the relevant Deferred Works by the time for Completion specified in this agreement; and

(iii) the time for completion of the Deferred Works under this agreement is the revised date for Completion approved by Council.

8 Application of s7.11, s7.12 and s7.24 of the Act to the Development (a) This agreement does not exclude the application of section 7.11 of the Act to the

Development.

(b) This agreement does not exclude the application of section 7.12 of the Act to the Development.

(c) This agreement does not exclude the application of section 7.24 of the Act to the Development.

(d) The benefits under this agreement are to be taken into consideration in determining a development contribution under section 7.11 of the Act for the Development.

9 Registration of this agreement 9.1 Registration of this Agreement

(a) The Developer Parties agree to procure the registration of this agreement under the Real Property Act 1900 (NSW) in the relevant folios of the Register of the Land in accordance with section 7.6 of the Act.

(b) The Developer Parties will, at their own expense, take all practical steps, and otherwise do anything that the Council reasonably requires to procure:

(i) the consent of each person who:

(A) has an estate or interest in the Land registered under the Real Property Act 1900 (NSW); or

(B) is seized or possessed of an estate or interest in the Land,

(ii) the execution of any documents; and

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(iii) the production of the relevant duplicate certificates of title,

to enable the registration of this agreement in accordance with clause 9.1.

(c) The Developer Parties will, at their own expense, take all practical steps, and otherwise do anything that the Council reasonably requires:

(i) to procure the lodgement of this agreement with the Registrar-General within 20 Business Days after the date of this agreement; and

(ii) to procure the registration of this agreement by the Registrar-General in the relevant folios of the Register for the Land as soon as reasonably practicable after this agreement is lodged for registration.

9.2 Removal from Register

The Council will provide a release and discharge of this agreement so that it may be removed from the folios of the Register for any part of the Land subject to a stage of the Development, provided the Works required at that stage of the Development have been Completed and the Developer Parties are not otherwise in default of any of the obligations under this agreement.

10 Review of this agreement (a) This agreement may be reviewed or modified. Any review or modification of this

agreement will be conducted in the circumstances and in the manner determined by the parties.

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

(c) A party is not in breach of this agreement if it does not agree to an amendment to this agreement requested by a party in, or as a consequence of, a review.

11 Dispute Resolution 11.1 Reference to Dispute

If a dispute arises between the parties in relation to this agreement, the parties must not commence any court proceedings relating to the dispute unless the parties have complied with this clause, except where a party seeks urgent interlocutory relief.

11.2 Notice of Dispute

The party wishing to commence the dispute resolution process must give written notice (Notice of Dispute) to the other parties of:

(a) The nature of the dispute,

(b) The alleged basis of the dispute, and

(c) The position which the party issuing the Notice of Dispute believes is correct.

11.3 Representatives of Parties to Meet

(a) The representatives of the parties must promptly (and in any event within 15 Business Days of the Notice of Dispute) meet in good faith to attempt to resolve the notified dispute.

(b) The parties may, without limitation:

(i) resolve the dispute during the course of that meeting,

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(ii) agree that further material, expert determination in accordance with clause 11.6 about a particular issue or consideration is needed to effectively resolve the dispute (in which event the parties will, in good faith, agree to a timetable for resolution); or

(iii) agree that the parties are unlikely to resolve the dispute and, in good faith, agree to a form of alternative dispute resolution (including expert determination, arbitration or mediation) which is appropriate for the resolution of the relevant dispute.

11.4 Further Notice if Not Settled

If the dispute is not resolved within 20 Business Days after the nominated representatives have met, either party may give to the other a written notice calling for determination of the dispute (Determination Notice) by mediation under clause 11.5 or by expert determination under clause 11.6.

11.5 Mediation

If a party gives a Determination Notice calling for the dispute to be mediated:

(a) The parties must agree to the terms of reference of the mediation within 15 Business Days of the receipt of the Determination Notice (the terms shall include a requirement that the mediation rules of the Institute of Arbitrators and Mediators Australia (NSW Chapter) apply;

(b) The mediator will be agreed between the parties, or failing agreement within 15 Business Days of receipt of the Determination Notice, either party may request the President of the Institute of Arbitrators and Mediators Australia (NSW Chapter) to appoint a mediator;

(c) The mediator appointed pursuant to this clause 11.5 must:

(i) Have reasonable qualifications and practical experience in the area of the dispute, and

(ii) Have no interest or duty which conflicts or may conflict with his or her function as a mediator he or she being required to fully disclose any such interest or duty before his or her appointment,

(d) The mediator shall be required to undertake to keep confidential all matters coming to his or her knowledge by reason of his or her appointment and performance of his or her duties;

(e) The parties must within 10 Business Days of receipt of the Determination Notice notify each other of their representatives who will be involved in the mediation;

(f) The parties agree to be bound by a mediation settlement and may only initiate judicial proceedings in respect of a dispute which is the subject of a mediation settlement for the purpose of enforcing that mediation settlement; and

(g) In relation to costs and expenses:

(i) Each party will bear its own professional and expert costs incurred in connection with the mediation; and

(ii) The costs of the mediator will be shared equally by the parties unless the mediator determines that a party has engaged in vexatious or

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unconscionable behaviour in which case the mediator may require the full costs of the mediation to be borne by that party.

11.6 Expert determination

If the dispute is not resolved under clause 11.3 or clause 11.5, or the parties otherwise agree that the dispute may be resolved by expert determination, the parties may refer the dispute to an expert, in which event:

(a) The dispute must be determined by an independent expert in the relevant field:

(i) Agreed upon and appointed jointly by the parties; and

(ii) In the event that no agreement is reached or no appointment is made within 15 Business Days of the agreement to refer the dispute to an expert, appointed on application of a party by the then President of the Law Society of New South Wales,

(b) The expert must be appointed in writing and the terms of the appointment must not be inconsistent with this clause;

(c) The determination of the dispute by such an expert will be made as an expert and not as an arbitrator and will be in writing and contain the reasons for the determination;

(d) The expert will determine the rules for the conduct of the process but must conduct the process sin accordance with the rules of natural justice;

(e) Each party will bear its own costs in connection with the process and the determination by the expert and will share equally the expert’s fees and costs; and

(f) Any determination made by an expert pursuant to this clause is final and binding upon the parties except unless:

(i) Within 20 Business Days of receiving the determination, a party gives written notice to the other party that it does not agree with the determination and commences litigation; or

(ii) The determination is in respect of, or relates to, termination or purported termination of this agreement by any party, in which event the expert is deemed to be giving a non-binding appraisal.

11.7 Litigation

If the dispute is not finally resolved in accordance with this clause 11, then either party is at liberty to litigate the dispute.

11.8 No suspension of contractual obligations

Subject to any interlocutory order obtained under clause 11.1, the referral to or undertaking of a dispute resolution process under this clause 11 does not suspend the parties’ obligations under this Agreement.

12 Security Not used

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13 Enforcement 13.1 Default

(a) In the event a party considers another party has failed to perform and fulfil an obligation under this agreement, it may give notice in writing to the other party (Default Notice) giving all particulars of the matters in respect of which it considers default has occurred and by such notice require the default to be remedied within a reasonable time not being less than 20 Business Days.

(b) In determining a reasonable time, regard must be had to both the nature of the default and the work or other action required to remedy it and whether or not the continuation of the default constitutes a public nuisance or raises other circumstances of urgency or emergency.

(c) If a party disputes the Default Notice it may refer the dispute to dispute resolution under clause 11 of this agreement.

13.2 Council may carry out Works

(a) If the Council has issued a Default Notice under clause 12.1 and:

(i) the Developer Parties have failed to comply with the Default Notice within the required time period; or

(ii) the matter has been referred to dispute resolution and the Developer Parties have failed to carry out Works in accordance with any mediation or expert determination,

the Council may, by its servants, agents, employees or contractors, enter the Land at reasonable times for the purposes of carrying out the Works itself, after giving the Developer Parties 20 Business Days’ further notice of its intention to do so.

(b) If the Council carries out the Works or any part of the Works in accordance with clause 12.2(a), it will be entitled to a reimbursement for the cost of those Works from the Developer Parties.

13.3 Restriction on the Issue of Certificates

(a) Council may withhold the issue of a Subdivision Certificate or Occupation Certificate if, at the relevant time, the Developer is in breach of any obligation under this Agreement.

13.4 General Enforcement

(a) Without limiting any other remedies available to the parties, this agreement may be enforced by any party in any Court of competent jurisdiction.

(b) Nothing in this agreement prevents:

(i) a party from bringing proceedings in the Land and Environment Court to enforce any aspect of this agreement or any matter to which this agreement relates; and

(ii) the Council from exercising any function under the Act or any other Act or law relating to the enforcement of any aspect of this agreement or any matter to which this agreement relates.

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14 Assignment and Dealings 14.1 Assignment

(a) A party must not assign or deal with any right under this agreement without the prior written consent of the other parties.

(b) Any change of ownership or control (as defined in section 50AA of the Commonwealth Corporations Act 2001) of a party (excluding the Council) shall be deemed to be an assignment of this agreement for the purposes of this clause.

(c) Any purported dealing in breach of this clause is of no effect.

14.2 Transfer of Land

(a) Once Developer 4 becomes the registered proprietor of Proposed Lot 4, it may not transfer, assign or dispose of the whole or any part of its right, title or interest in that land (present or future) to another person (Transferee) unless before it sells, transfers or disposes of that right, title or interest:

(i) Developer 4 satisfies the Council that the proposed Transferee is financially capable of complying with the obligations to carry out the Works;

(ii) Developer 4 satisfies the Council that the rights of the Council will not be diminished or fettered in any way;

(iii) The Transferee delivers to the Council a novation deed signed by the Transferee in a form and of such substance as is acceptable to the Council containing provisions under which the Transferee agrees to comply with all the outstanding obligations of Developer 4 under this agreement;

(iv) Any default under any provisions of this agreement has been remedied or waived by the Council, on such conditions as the Council may determine, and

(v) The Transferee pays the Council’s reasonable costs in relation to the assignment.

15 Approvals and consents Except as otherwise set out in this agreement, and subject to any statutory obligations, a party may give or withhold an approval or consent to be given under this agreement in that party’s absolute discretion and subject to any conditions determined by the party. A party is not obligated to give its reasons for giving or withholding consent or for giving consent subject to conditions.

16 No fetter 16.1 Discretion

This agreement is not intended to operate to fetter, in any manner, the exercise of any statutory power or discretion of the Council, including, but not limited to, any statutory power or discretion of the Council relating to the Development Application for the Development or any other application for Development Consent (all referred to in this agreement as a “Discretion”).

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16.2 No fetter

No provision of this agreement is intended to constitute any fetter on the exercise of any Discretion. If, contrary to the operation of this clause, any provision of this agreement is held by a court of competent jurisdiction to constitute a fetter on any Discretion, the parties agree:

(a) They will take all practical steps, including the execution of any further documents, to ensure the objective of this clause is substantially satisfied,

(b) In the event that (a) cannot be achieved without giving rise to a fetter on the exercise of a Discretion, the relevant provision is to be severed and the remainder of this agreement has full force and effect, and

(c) To endeavour to satisfy the common objectives of the parties in relation to the provision of this agreement which is to be held to be a fetter on the extent that is possible having regard to the relevant court judgment.

17 Notices 17.1 Notices

Any notice given under or in connection with this agreement (Notice):

(a) must be in writing and signed by a person duly authorised by the sender;

(b) must be addressed as follows and delivered to the intended recipient by hand, by prepaid post or by email or fax at the address or fax number below, or at the address or fax number last notified by the intended recipient to the sender after the date of this agreement:

(i) to Blacktown City Council:

PO Box 63, Blacktown NSW 2148

Fax: 02 9831 1961

Email: [email protected]

Attention:

(ii) to the Developer Parties:

c/- BHL Group

Fax:

Email: [email protected]

Attention: Robert Tasevski

(c) is taken to be given or made:

(i) in the case of hand delivery, when delivered;

(ii) in the case of delivery by post, three Business Days after the date of posting (if posted to an address in the same country) or seven Business Days after the date of posting (if posted to an address in another country); and

(iii) in the case of a fax, on production of a transmission report by the machine from which the fax was sent that indicates the fax was sent in its entirety to the recipient’s fax number; and

(d) if under clause (c) a Notice would be taken to be given or made on a day that is not a Business Day in the place to which the Notice is sent, or later than 4.00 pm

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(local time), it is taken to have been given or made at the start of business on the next Business Day in that place.

18 General 18.1 Relationship between parties

(a) Nothing in this agreement:

(i) constitutes a partnership between the parties; or

(ii) except as expressly provided, makes a party an agent of another party for any purpose.

(b) A party cannot in any way or for any purpose:

(i) bind another party; or

(ii) contract in the name of another party.

(c) If a party must fulfil an obligation and that party is dependent on another party, then that other party must do each thing reasonably within its power to assist the other in the performance of that obligation.

18.2 Time for doing acts

(a) If the time for doing any act or thing required to be done or a notice period specified in this agreement expires on a day other than a Business Day, the time for doing that act or thing or the expiration of that notice period is extended until the following Business Day.

(b) If any act or thing required to be done is done after 5.00 pm on the specified day, it is taken to have been done on the following Business Day.

18.3 Further assurances

Each party must promptly execute all documents and do all other things reasonably necessary or desirable to give effect to the arrangements recorded in this agreement.

18.4 Variation

A provision of this agreement can only be varied by a later written document executed by or on behalf of all parties and in accordance with the provisions of the Act.

18.5 No assignment

A party cannot assign or otherwise transfer its rights under this agreement without the prior written consent of the other party.

18.6 Counterparts

This agreement may be executed in any number of counterparts. All counterparts taken together constitute one instrument.

18.7 Legal expenses and stamp duty

(a) The Developer Parties must pay the Council's legal costs and disbursements in connection with the negotiation, preparation and execution of this agreement, up to a maximum amount of $30,000 including any GST.

(b) The Council acknowledges that, as at the date of this agreement, the Developer Parties have paid to Council $10,000 towards the Council’s total legal costs and disbursements.

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18.8 Entire agreement

The contents of this agreement constitute the entire agreement between the parties and supersede any prior negotiations, representations, understandings or arrangements made between the parties regarding the subject matter of this agreement, whether orally or in writing.

18.9 Representations and warranties

The parties represent and warrant that they have the power and authority to enter into this agreement and comply with their obligations under the agreement and that entry into this agreement will not result in the breach of any law.

18.10 Severability

If a clause or part of a clause of this agreement can be read in a way that makes it illegal, unenforceable or invalid, but can also be read in a way that makes it legal, enforceable and valid, it must be read in the latter way. If any clause or part of a clause is illegal, unenforceable or invalid, that clause or part is to be treated as removed from this agreement, but the rest of this agreement is not affected.

18.11 Invalidity

(a) A word or provision must be read down if:

(i) this agreement is void, voidable, or unenforceable if it is not read down;

(ii) this agreement will not be void, voidable or unenforceable if it is read down; and

(iii) the provision is capable of being read down.

(b) A word or provision must be severed if:

(i) despite the operation of clause (a), the provision is void, voidable or unenforceable if it is not severed; and

(ii) this agreement will be void, voidable or unenforceable if it is not severed.

(c) The remainder of this agreement has full effect even if clause 18.11(b) applies.

18.12 Waiver

(a) A right or remedy created by this agreement cannot be waived except in writing signed by the party entitled to that right. Delay by a party in exercising a right or remedy does not constitute a waiver of that right or remedy, nor does a waiver (either wholly or in part) by a party of a right operate as a subsequent waiver of the same right or of any other right of that party.

(b) The fact that a party fails to do, or delays in doing, something the party is entitled to do under this agreement, does not amount to a waiver of any obligation of, or breach of obligation by, another party. A waiver by a party is only effective if it is in writing. A written waiver by a party is only effective in relation to the particular obligation or breach in respect of which it is given. It is not to be taken as an implied wavier of any other obligation or breach or as an implied wavier of that obligation or breach in relation to any other occasion.

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18.13 GST

(a) Words and expressions which are not defined in this agreement but which have a defined meaning in GST Law have the same meaning as in the GST Law.

(b) Unless otherwise expressly stated, all prices or other sums payable or consideration to be provided under this agreement are exclusive of GST.

(c) If GST is imposed on any supply made under or in accordance with this agreement, the recipient of the supply must pay the GST or an amount equal to the GST payable on or for the taxable supply, whichever is appropriate in the circumstances.

18.14 Governing law and jurisdiction

(a) The laws applicable in New South Wales govern this agreement.

(b) The parties submit to the non-exclusive jurisdiction of the courts of New South Wales and any courts competent to hear appeals from those courts.

18.15 Explanatory Note

(a) The parties have jointly prepared the draft Explanatory Note at Annexure B for this agreement.

(b) The Explanatory Note is not to be used to interpret the terms of this agreement.

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Schedule 1 Developer Parties Cyan Stone Clydesdale Estate 1 Pty Limited ACN 610 208 967 (Developer 1)

Cyan Stone Clydesdale Estate 2 Pty Limited ACN 610 209 106 (Developer 2)

Cyan Stone Clydesdale Estate 3 Pty Limited ACN 610 210 494 (Developer 3)

Cyan Stone Clydesdale Pty Limited ACN 610 008 172 ATF the Cyan Stone Clydesdale Trust (Developer 4)

Cyan Stone Clydesdale Development Pty Limited ACN 610 008 467 ATF the Cyan Stone Clydesdale Development Trust (Developer 5)

Cyan Stone Clydesdale Holdings Pty Limited ACN 610 008 510 ATF the Cyan Stone Clydesdale Holdings Trust (Developer 6)

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Schedule 2 Subdivision Plan

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Schedule 3 Scope and timing of completion of works to the “Clydesdale” estate

Stage of Works Description Timing

Temporary Protective Works

Temporary Protective Works as described in the Heritage CMP and its revised SCW 1 issue D, dated 23/08/18 and otherwise as required under the Heritage Act.

The Temporary Protective Works must be completed before the earlier of:

(1) a Construction Certificate being issued in respect of the bulk earthworks for the Development; and

(2) a Subdivision Certificate being issued for the Subdivision Plan.

Essential Works (external)

60% of the Essential Works (as described in the Heritage CMP and its revised SCW 2 issue D dated 24/07/2018)

The Essential Works must be completed prior to the issue of a Subdivision Certificate or Occupation Certificate for the Lot 1 Development, whichever occurs first.

Essential Works (internal)

40% of the Essential Works (as described in the Heritage CMP and its revised SCW 2 issue D dated 24/07/2018)

The Essential Works must be completed prior to the issue of a Subdivision Certificate or Occupation Certificate for the Lot 3 Development, or Lot 2 Development, whichever occurs first.

Heritage Conservation Works

“Heritage conservation works” as defined in Definitions to “lock-up”

The Heritage Conservation Works must be completed prior to the issue of a Subdivision Certificate or Occupation Certificate for the Second Stage Development.

Heritage Works - Stage 1

The detailed design and costing of an adaptive re-use project for the Heritage Item in accordance with the Heritage CMP, the SCW 3 Issue_, dated ____,including approval from NSW Office of Environment & Heritage and costing by a quantity surveyor, but does not include the works to complete the adaptive re-use

Both the Heritage Works – Stage 1 and the Heritage Works – Stage 2 must be completed prior to the issue of a Subdivision Certificate or Occupation Certificate for the

Last Stage Development.

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project.

Heritage Works - Stage 2

The adaptive re-use of the Heritage Item in accordance with the Heritage CMP, the SCW 3 Issue_, dated ____, and the detailed design prepared in carrying out the Heritage Works - Stage 1, including securing an “end-user” for the Heritage Item.

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Schedule 4 Summary of requirements (section 7.4)

Subject and subsection of the Act Planning Agreement

Planning instrument and/or Development Application – Section 7.4(1)

The Developer Parties have:

(a) Sought a change to an environmental planning instrument

☐ Yes ☒ No

(b) Made, or propose to make a Development Application

☒ Yes ☐ No

(c) Entered into an agreement with, or are otherwise associated with, a person to whom paragraph (a) or (b) applies

☐ Yes ☒ No

Description of the land to which the planning Agreement applies – Section 7.4(3)(a)

Clause 1 – Definition of “Land”

The scope, timing and manner of delivery of contribution required by the Planning Agreement – Section 7.4(3)(b)

Clause 1 and Schedule 3 and Clause 6.1 – Works

Applicability of section 7.11 of the Act – Section 7.4(3)(d)

Section 7.11 is not excluded, clause 7(a)


Section 7.12 is not excluded, clause 7(b)


Section 7.24 is not excluded, clause 7(c)

Mechanism for dispute resolution – Section 7.4(3)(f)

Clause 10 – Dispute Resolution

Enforcement of the Planning Agreement – Section 7.4(3)(g)

Clause 8 – Registration of this agreement Clause 11 – Enforcement Clause 12 – Assignment and Dealings

Registration of the Planning Agreement – Section 7.6

Clause 8 – Registration of this agreement

No obligation to grant consent or exercise functions – Section 7.4(9)

See clause 16 (no fetter)

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Executed as an agreement

Signed for and on behalf of Blacktown City Council ABN 18 153 831 768 by its authorised delegate in accordance with a resolution of the Council dated [insert date]:

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Signature of Witness

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Signature of Authorised Representative

.......................................................................

Print name of Witness

Executed by Cyan Stone Clydesdale Estate 1 Pty Ltd ACN 610 208 967 in accordance with section 127 of the Corporations Act 2001 (Cth) by:

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)

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Signature of Director

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Signature of Director/Secretary

.......................................................................

Print name of Director

.......................................................................

Print name of Director/Secretary

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Executed by Cyan Stone Clydesdale Estate 2 Pty Limited ACN 610 209 106 in accordance with section 127 of the Corporations Act 2001 (Cth) by:

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.......................................................................


.......................................................................


.......................................................................


Executed by Cyan Stone Clydesdale Estate 3 Pty Limited ACN 610 210 494 in accordance with section 127 of the Corporations Act 2001 (Cth) by:

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Executed by Cyan Stone Clydesdale Pty Limited ATF Cyan Stone Clydesdale Trust ACN 610 008 172 in accordance with section 127 of the Corporations Act 2001 (Cth) by:

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.......................................................................


Executed by Cyan Stone Clydesdale Development Pty Limited ATF the Cyan Stone Clydesdale Development Trust ACN 610 008 467 in accordance with section 127 of the Corporations Act 2001 (Cth) by:

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Executed by Cyan Stone Clydesdale Holdings Pty Limited ATF the Cyan Stone Clydesdale Holdings Trust ACN 610 008 510 in accordance with section 127 of the Corporations Act 2001 (Cth) by:

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Annexure A Conservation Management Plan

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Page 1 of 2

Outer Sydney Orbital map

LOCATION OF SUBJECT SITE


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Transport for NSW (TfNSW)

241 O’Riordan Street, Mascot NSW 2020

T 02 8202 2200 | W transport.nsw.gov.au | ABN 18 804 239 602

Mr Alan Middlemiss Team Leader - Projects Blacktown City Council PO Box 63 BLACKTOWN NSW 2148

Attn: Jared Spies

Dear Mr Middlemiss

Development Applications (DA-16-04611, DA-16-04366, JRPP-16-03316 and SPP-16-04469) for Proposed Developments in Clydesdale – 1270 Richmond Road, Marsden

Park (Lot 2 DP 260476)

Thank you for your letter dated 3 April 2018 inviting Transport for NSW (TfNSW) to review and comment on the above applications.

TfNSW has recently released four recommended corridors in Western Sydney for future transport infrastructure to support the growing population of Western Sydney. These four recommended corridors are currently undergoing a corridor preservation process, which is intended to be achieved through a State Environmental Planning Policy (SEPP) to protect land that will be affected and to identify them as reserved infrastructure corridor through rezoning. A Discussion Paper on the proposed State Environmental Planning Policy to protect Western Sydney Corridors is currently on exhibition for public consultation.

A Draft Strategic Environmental Assessment (SEA) has been prepared for the Outer Sydney Orbital (OSO), one of the recommended corridors, and is also on public exhibition alongside with the aforesaid Discussion Paper. The OSO would accommodate a future Motorway and major freight rail line for a north-south bypass of Sydney. The section of the OSO located along the South Creek corridor between Marsden Park and Luddenham is likely to be on significant viaduct structures. The proposed SEPP, if approved, would rezone land within the corridors as SP2 Infrastructure.

TfNSW appreciates Council, as the consent authority for referring the subject applications, and continuing to give consideration to the current process of corridor preservation undertaken by the State Agencies. Future land uses in and around these corridors would be subject to the provisions of the relevant planning instruments made at the time of assessment.

The subject site (Lot 2 DP 260476) is partly located on the draft OSO corridor. A comparison between the plans of the subject applications and the draft OSO corridor indicates that minor parts of the proposed roads under the subdivision applications (DA-16-04366, JRPP-16-03316 and SPP-16-04469) and cut zone 1 of the proposed bulkearthworks application (DA-16-04611) are located within the draft OSO corridor.

Attachment 10Blacktown Local Planning Panel Report: DA-16-04366




TfNSW considers that the subject bulk earthworks and subdivision applications would have a slight but manageable impact on the draft OSO corridor. Therefore, TfNSW raises no objections to the subject applications (DA-16-04611, DA-16-04366, JRPP-16-03316 and SPP-16-04469) in their current form.

Given the proximity of the draft OSO corridor to proposed urban land, including with potentially sensitive noise receivers, future development proposals should consider the “Interim Guidelines for Development Near Busy Roads and Railways”. In addition Council should consider imposing a condition of consent requiring an easement to be registered on title of the subject lot granting TfNSW the full and free right to emit and allow the emission of any noise, vibration, and electrolysis over the subject lot as a direct result of any future transport activities carried out on the OSO.

Thank you for the opportunity of providing comment on the subject application. For further information regarding this matter, please contact Mark Ozinga, Principal Manager Land Use Planning & Development, at [email protected].

Yours sincerely

Mark Ozinga Principal Manager Land Use Planning & Development Freight, Strategy and Planning

CD18/03248

14/6/2018




Mr Jared Spies Senior Planner Blacktown City Council PO Box 63 BLACKTOWN NSW 2148 Dear Mr Spies

Development Applications (DA-16-04611, DA-16-04366, JRPP-16-03316 and SPP-16-04469) for Proposed Developments in Clydesdale – 1270 Richmond Road, Marsden

Park (Lot 2 DP 260476) Thank you for your email dated 23 July 2018 in response to our submission made on 14 June 2018 in regards to the above development applications. This letter should be considered as a supplementary commentary to our original submission dated 14 June 2018.

It is noted that Council had reviewed our original submission and raised concern regarding our recommendation to Council for imposing a condition of consent “requiring an easement to be registered on title of the subject lot grating TfNSW the full and free right to emit and allow the emission of any noise, vibration, and electrolysis over the subject lot as a direct result of any future transport activities carried out on the Outer Sydney Orbital.”

TfNSW appreciates Council, as the consent authority, had considered the legal implication of the recommended condition of consent suggested in our original submission. On this note, TfNSW concurs with Council that the aforesaid condition of consent should not be imposed.

For further information regarding this matter, please contact Billy Yung, Senior Transport Planner, at [email protected].

Yours sincerely

Mark Ozinga Principal Manager Land Use Planning & Development Freight, Strategy and Planning

CD18/03248

25/7/2018


Draft conditions of consent Proposed Development:

TORRENS TITLE SUBDIVISION TO CREATE 5 SUPERLOTS AT 1270 RICHMOND ROAD, MARSDEN PARK

1 Advisory Notes 1.1 Terminology 1.1.1 Any reference in this document to a "consent" means a "development consent" defined

in the Environmental Planning and Assessment Act 1979. 1.1.2 Any reference in this consent to a Construction, Compliance, Occupation or Subdivision

Certificate is a reference to a certificate as defined by Section 109C of the Environmental Planning and Assessment Act 1979.

1.2 Scope of Consent 1.2.1 The applicant is advised that Council will not release the Subdivision Certificate for the

approved development until such time as the development has been completed in accordance with all of the conditions of consent, to Council's satisfaction.

1.3 Heritage 1.3.1 This consent in no way authorises the demolition of any buildings, structures or elements

associated with the Clydesdale dairy. Separate applications are to be made with Council.

2 GENERAL 2.1 Scope of Consent 2.1.1 This consent relates to the following drawings/details submitted to Council with the

Development Application, subject to compliance with any other conditions of this consent:

Title Drawing

Number Prepared by Date Council’s

File Encl. No.

Plan of subdivision of Lot 2 DP 260476

1 of 1 Craig & Rhodes No date 6C

2.2 Suburb Name 2.2.1 The land the subject of this consent is known to be located in the following suburb. This

suburb name shall be used for all correspondence and property transactions:

Suburb: Marsden Park


2.3.2 Subdivision 2.3.2.1 Principal Certifying Authority - Blacktown City Council shall be the Principal Certifying

Authority for the proposed subdivision and shall issue the Subdivision Certificate upon compliance with all conditions of this consent.

2.4 Other Matters 2.4.2 Any future substation, temporary drainage works or other utility installation required to

service the approved subdivision/development shall not be sited on future or existing Council land, including road reservations and/or public reserves.

2.5 NSW Office of Environment and Heritage 2.5.1 Approved Development The subdivision shall comply with the information contained within:

a) Survey drawings, prepared by Craig and Rhodes as listed below:

Drawing No. Title Date Rev

Project Name: Subdivision of lot 2 D.P.260476 (Clydesdale Estate)

1 of 2 Deposited Plan Administration Sheet

No date 1782 Procedural

2 of 2 Deposited Plan Administration Sheet

No date 1782 Procedural

1 of 1 Plan of subdivision of Lot 2 DP 260476

No date Preliminary

1 of 1 Plan of subdivision of Lot 2 DP 260476 (zoning included)

16 May 2018 Preliminary

b) Statement of Heritage Impact titled:

5 Lot Subdivision, Clydesdale Estate, 1270 Richmond Road, Marsden Park, NSW, prepared by GBA Heritage, Issue F June 2018.

c) Conservation Management Plan (CMP) titled Clydesdale Estate, 1270 Richmond Road, Marsden Park, NSW, prepared by GBA Heritage, Issue K December 2017.

EXCEPT AS AMENDED by the follow conditions of approval: 2.5.2 Compliance with Conservation Management Plan The proposed subdivision must comply with the endorsed Conservation Management

Plan.


2.5.3 Nominated Heritage Consultant A suitably qualified and experienced heritage consultant, with demonstrated experience

with similar pastoral heritage sites and works, must be nominated and appointed for this project. The nominated heritage consultant must provide input into the drafting of the finalised subdivision plan prior to lodging with Blacktown City Council for the Subdivision Certificate. The heritage consultant must be satisfied that the finalised subdivision is in accordance with this consent.

2.5.4 Compliance If requested, the Applicant and Nominated Heritage Consultant may be required to

participate in audits of Heritage Council approvals to confirm compliance with conditions of consent.

2.6 Other Authorities 2.6.1 The applicant is to make a special infrastructure contribution in accordance with any

determination made by the Minister administering the Environmental Planning and Assessment Act 1979 under section 7.17 of that Act that is in force on the date of the consent, and must obtain a certificate to that effect from the Department of Planning and Infrastructure before a Subdivision Certificate is issued in relation to any part of the development to which this consent relates.

More information Information about the special infrastructure contribution can be found on the Department of Planning and Environment’s website: http://www.planning.nsw.gov.au/Policy-and-Legislation/Infrastructure/Infrastructure-Funding

3 Prior to Subdivision Certificate 3.1 Site Access 3.1.1 There shall be no direct vehicular or pedestrian access to and/or from the following

nominated road(s) for any lots having frontage to that road. An appropriate restriction on the use of land shall be created under Section 88B of the Conveyancing Act 1919 covering this requirement. The Section 88B Instrument shall contain a provision that it may not be extinguished or altered except with the consent of Blacktown City Council.

Nominated Road(s): Richmond Road 3.1.2 A 16.5 m wide Right of Carriageway shall be provided over the lots that do not have

access to a dedicated public road and an appropriate restriction on the use of the land shall be created, under Section 88B of the Conveyancing Act 1919, covering this requirement. This Right of Carriageway is a temporary right which shall automatically terminate upon the construction of a dedicated public road providing vehicular access to the benefiting lot(s).

3.2 Heritage 3.2.1 The temporary protective works listed in the Conservation Management Plan’s Revised

Schedule of Conservation Works 1 (prepared by GBA Heritage Issue D dated August 2018) must be completed to the satisfaction of the Applicant’s Nominated Heritage Consultant, the Heritage Division of the Office of Environment and Heritage and Blacktown City Council prior to the release of the Subdivision Certificate by Blacktown City Council for the 5 superlot subdivision.

http://www.planning.nsw.gov.au/Policy-and-Legislation/Infrastructure/Infrastructure-Funding

http://www.planning.nsw.gov.au/Policy-and-Legislation/Infrastructure/Infrastructure-Funding


3.2.2 A Restriction as to User over the proposed superlots shall be created under Section 88B

of the Conveyancing Act 1919 in the following terms:

a. Proposed Lot 4 is to be retained as a residue lot and no further subdivision of the lot burdened is to take place.

b. No further development of the lots burdened is to take place unless it is approved by separate Development Consent.

Note: The final wording of the recital of the Restriction as to User is to be to

Council’s satisfaction. 3.3 Voluntary Planning Agreement 3.3.1 The VPA executed between Council and the owners of the subject land must be

registered on title with NSW Land Registry Services prior to the release of the Subdivision Certificate.

3.4 Engineering Matters 3.4.1 Surveys/Certificates/Works As Executed plans 3.4.1.1 A Certificate shall be submitted by a Registered Surveyor indicating that all structures lie

wholly within any easements required by this consent. 3.4.2 Easements/Restrictions/Positive Covenants 3.4.2.1 Any easement(s) or restriction(s) required by this consent must nominate Blacktown City

Council as the authority to release vary or modify the easement(s) or restriction(s). The form of easement or restriction created as a result of this consent must be in accordance with the following:

(a) Blacktown City Council's standard recitals for Terms of Easements and

Restrictions (Current Version). (b) The standard format for easements and restrictions as accepted by NSW Land

Registry Services. 3.4.2.2 Restrictions and positive covenant must be endorsed by Council and lodged with NSW

Land Registry Services over the overland flowpath. Documentary evidence of this lodgement shall be submitted to Council.

3.4.2.3 The creation of reciprocal rights of way over the access to all lot(s) under Section 88B of

the Conveyancing Act 1919. A restriction as to user for “Maintenance and Repair of the Shared Access” is to be in

accordance with Blacktown City Council recitals for terms of Easements and Restrictions (Current Version).

3.4.2.4 All Section 88B restrictions and covenants created under the Conveyancing Act 1919 as

part of this consent shall contain a provision that they cannot be extinguished or altered except with the consent of Blacktown City Council.


3.5 NSW Office of Environment and Heritage 3.5.1 Subdivision Certificate The Subdivision Certificate must not be issued under the Environmental Planning and

Assessment Act 1979 until after an application is made under Section 60 of the Heritage Act 1977 and approved.

3.6 Residue Lot Restrictions

3.6.1 A Restriction as to User over the proposed Lots shall be created under Section 88B of the Conveyancing Act 1919 in the following terms:

No further development of the lots burdened is to take place unless it is approved by Development Consent. Such approval is likely to require, but not be restricted to, construction of road and drainage works, the provision of lot fill, the payment of section 7.11 Contributions and site validation works conducted to NEPM 2013 guidelines.

NOTE: The final wording of the recital of the Restriction as to User is to be to Council's satisfaction.

3.7 Final Plans 3.7.1 The submission of a final plan of subdivision, together with 7 exact copies and the

appropriate fee. The final plan of subdivision will not be released until all conditions of this determination have been complied with.

3.7.2 Where any permanent control marks are placed in accordance with the Survey Practice

Regulation 1990 in the preparation of the plan, 2 copies of the locality sketch plans of the marks placed are to be forwarded to Council with the final plan of subdivision.

3.8 Service Authority Approvals 3.8.1 The following documentary evidence shall be obtained and forwarded to the Principal

Certifying Authority prior to the release of the Subdivision Certificate:

(a) A Section 73 Compliance Certificate under the Sydney Water Act 1994 must be obtained. Please refer to the "Building Plumbing and Developing" Section of the website www.sydneywater.com.au, then follow the "Developing Your Land" link or telephone 13 20 92 for assistance. Following application a "Notice of Requirements" will advise of water and sewer extensions to be built and charges to be paid. Please make early contact with the Coordinator since building of water/sewer extensions can be time consuming and may impact on other services and building, driveway or landscape design. The Section 73 Certificate must be submitted to the Principal Certifying Authority prior to the occupation of the development/release of the plan of subdivision.

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