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This is a Bill, not an Act. For current law, see the Acts databases.
Queensland
Breakwater Island Casino
Agreement Amendment
Bill 2006
Queensland
Breakwater Island Casino Agreement
Amendment Bill 2006
Contents
Page
Part 1 Preliminary
1 Short title . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Part 2 Amendment of Breakwater Island Casino Agreement Act
1984
2 Act amended in pt 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
3 Amendment of s 3 (Variation of formal agreement) . . . . . . . . . . . 4
4 Omission of ss 4 and 5. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
5 Amendment of s 6 (Parliament not restricted) . . . . . . . . . . . . . . . 5
6 Omission of ss 7 and 8. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
7 Amendment of sch 2 (Proposed further agreement) . . . . . . . . . . 5
Part 3 Repeal of regulation
8 Repeal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 117
2006
A Bill
for
An Act to amend the Breakwater Island Casino Agreement Act
1984, and for another purpose
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Breakwater Island Casino Agreement Amendment
Bill 2006
The Parliament of Queensland enacts-- 1
Part 1 Preliminary 2
Clause 1 Short title 3
This Act may be cited as the Breakwater Island Casino 4
Agreement Amendment Act 2006. 5
Part 2 Amendment of Breakwater 6
Island Casino Agreement Act 7
1984 8
Clause 2 Act amended in pt 2 9
This part amends the Breakwater Island Casino Agreement 10
Act 1984. 11
Clause 3 Amendment of s 3 (Variation of formal agreement) 12
(1) Section 3(1), from `(corresponding' to `schedule 2)'-- 13
omit, insert-- 14
`corresponding to a proposed further agreement set out in 15
schedule 2'. 16
(2) Section 3-- 17
insert-- 18
`(3) The further agreement in schedule 2, part 2, varies the formal 19
agreement only to the extent the further agreement contains a 20
variation of the formal agreement as in force immediately 21
before the making of the further agreement.'. 22
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Clause 4 Omission of ss 4 and 5 1
Sections 4 and 5-- 2
omit. 3
Clause 5 Amendment of s 6 (Parliament not restricted) 4
(1) Section 6, `, the Board agreement or the Council 5
agreement'-- 6
omit. 7
(2) Section 6, from `the agreements'-- 8
omit, insert-- 9
`the agreement under the agreement or any variations of it.'. 10
(3) Section 6-- 11
renumber as section 4. 12
Clause 6 Omission of ss 7 and 8 13
Sections 7 and 8-- 14
omit. 15
Clause 7 Amendment of sch 2 (Proposed further agreement) 16
(1) Schedule 2, from `Schedule 2' to `section 3'-- 17
omit, insert-- 18
`Schedule 2 Proposed further agreements 19
section 3(1) 20
Part 1 Proposed further agreement for 21
Wagering Act 1998, part 16'. 22
(2) Schedule 2, at the end-- 23
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Breakwater Island Casino Agreement Amendment
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insert-- 1
`Part 2 Proposed further agreement for 2
Breakwater Island Casino 3
Agreement Amendment Act 4
2006 5
THIS AGREEMENT is made on 2006 6
Between 7
The State of Queensland (State) 8
and 9
Jupiters Limited ACN 010 741 045 a company duly incorporated by law 10
and having its registered office at 5 Bowen Crescent, Melbourne, Victoria 11
(Jupiters) 12
and 13
Breakwater Island Limited ACN 010 271 691 a company duly 14
incorporated by law and having its registered office at 5 Bowen Crescent, 15
Melbourne, Victoria (Breakwater Island) 16
____________________________________________________________ 17
Recitals 18
A The State, ANZ Executors and Trustee Company Limited and 19
Breakwater Island are parties to an agreement made on 27 November 20
1984 relating to the establishment and operation of a Hotel/Casino 21
complex in Townsville in the State of Queensland which was 22
authorised by the Breakwater Island Casino Agreement Act 1984 and 23
as varied pursuant to that Act by agreements made on 11 December 24
1992, 17 September 1993, 16 December 1994 and 31 January 1997. 25
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B ANZ Executors and Trustee Company Limited has been replaced as 1
Trustee of the Breakwater Island Trust by Breakwater Island. 2
C Jupiters holds all the units in the Breakwater Island Trust. 3
____________________________________________________________ 4
Operative Provisions 5
1 Amendment of Breakwater Island Casino Agreement 6
The parties agree that the Breakwater Island Casino Agreement is 7
amended in terms of the variation attached being a replacement 8
agreement. 9
2 Governing Law 10
The interpretation and construction of this agreement shall be 11
governed and determined in accordance with the law of Queensland 12
and the parties submit to the non-exclusive jurisdiction of the Courts 13
of that State. 14
Executed as a deed. 15
16
Signed by the Treasurer of The ) 17
State of Queensland for and on ) 18
behalf of The State of ) 19
Queensland in the presence of: ) 20
21
................................................ ..................................................... 22
Witness Treasurer 23
24
............................................... ..................................................... 25
Name of Witness (print) Name of Treasurer (print) 26
27
28
29
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Breakwater Island Casino Agreement Amendment
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The common seal of Jupiters) ) 1
Limited ACN 010 741 045 is ) 2
affixed in accordance with its ) 3
articles of association in the ) 4
presence of: ) 5
6
................................................ ..................................................... 7
Director Director/Secretary 8
9
............................................... ..................................................... 10
Name of Director (print) Name of Director/Secretary (print) 11
12
13
The common seal of Breakwater ) 14
Island Limited ACN 010 271 691 ) 15
is affixed in accordance with its ) 16
articles of association in the ) 17
presence of: ) 18
19
................................................ ..................................................... 20
Director Director/Secretary 21
22
............................................... ..................................................... 23
Name of Director (print) Name of Director/Secretary (print) 24
25
26
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Breakwater Island Casino Agreement Amendment
Bill 2006
REPLACEMENT AGREEMENT 1
Date 2
Parties 3
The State of Queensland (State) 4
Jupiters Limited ACN 010 741 045 a company duly incorporated by law 5
and having its registered office at 5 Bowen Crescent, Melbourne, Victoria 6
(Jupiters) 7
Breakwater Island Limited ACN 010 271 691 a company duly 8
incorporated by law and having its registered office at 5 Bowen Crescent, 9
Melbourne, Victoria (Breakwater Island) 10
Background 11
A This Agreement was entered into in accordance with section 2 12
(Ratification of formal agreement) of the Agreement Act to satisfy 13
section 19 (Agreement to precede grant of casino licence) of the 14
Control Act. 15
B Prior to the grant of the Casino Licence, the State set out its 16
objectives and considerations in its Brief to Finalists in which the 17
State considered the following objectives and considerations as 18
being of paramount importance to the establishment and operation 19
of casinos in the State of Queensland-- 20
(i) the Casino Licence holder was required to establish a 21
hotel-casino complex of the highest standard and operate that 22
complex on an impeccable basis; and 23
(ii) the establishment of the hotel-casino complex was required to 24
be of maximum enhancement to the tourist industry of 25
Queensland by the provision of an international class hotel, 26
casino and convention centre with the best standard of 27
ancillary amenities such as restaurants, entertainment theatres, 28
sporting and other community facilities; and 29
(iii) the permitted establishment and operation of the Casino was 30
required to give significant community benefits; and 31
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(iv) by the operation of the Casino the revenue of the State is 1
enhanced. 2
C The Trustee holds the Casino Licence, owns the Site and owns the 3
Breakwater Island Casino-Hotel Complex. 4
D Jupiters owns all of the Units. 5
E The State acknowledged that the establishment of the Breakwater 6
Island Casino-Hotel Complex was a large scale development 7
project requiring a very large capital expenditure and that it was 8
necessary to give to the then trustee of the Breakwater Island Trust, 9
the security and assurances contained herein to enable the 10
provision of capital for the establishment of the Breakwater Island 11
Casino-Hotel Complex. 12
F It is desirable that in consideration of the Trustee entering into the 13
obligations on its part hereinafter set out that the Trustee should be 14
granted the entitlements benefits and privileges hereinafter 15
mentioned. 16
G Whilst the parties recognise that the power of the Parliament of the 17
State of Queensland to make laws is absolute and cannot be taken 18
away by an agreement made by the State, it is the intention of the 19
State that the titles, rights and privileges of the Trustee be not 20
derogated from by the State in any manner whatsoever except as 21
hereinafter provided. 22
PART I--PRELIMINARY 23
1 Definitions 24
In this Agreement unless the context otherwise indicates or 25
requires, the terms following shall have the meanings 26
respectively assigned to them-- 27
Agreement means this agreement and the schedules thereto 28
and all amendments to such agreement or schedules. 29
Agreement Act means the Breakwater Island Casino 30
Agreement Act 1984. 31
Approved Holder means-- 32
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(a) a body registered under the Life Insurance Act 1995 1
(Cwlth) if the body, in its last published audited 2
financial statements, held net assets of at least $100 3
million; or 4
(b) a regulated superannuation fund, an approved deposit 5
fund, a pooled superannuation trust, or a public sector 6
superannuation scheme within the meaning of the 7
Superannuation Industry (Supervision) Act 1993 8
(Cwlth) if the fund, trust or scheme, in its last published 9
audited financial statements, held net assets of at least 10
$100 million; or 11
(c) a managed investment scheme within the meaning of the 12
Corporations Act if the scheme, in its last published 13
audited financial statements, held net assets of at least 14
$100 million; or 15
(d) a person who is a licensed dealer and a member 16
organisation of an Australian stock exchange within the 17
meaning of the Corporations Act acting as principal, if 18
the licensed dealer, in its last published audited financial 19
statements, held net assets of at least $100 million; or 20
(e) an authorised deposit taking institution that carries on 21
any banking business in Australia within the meaning of 22
the Banking Act 1959 (Cwlth) and their wholly owned 23
subsidiaries; or 24
(f) any building society regulated by the Australian 25
Prudential Regulation Authority and their wholly owned 26
subsidiaries. 27
Breakwater Island means Breakwater Island Limited ACN 28
010 271 691. 29
Breakwater Island Casino-Hotel Complex means all land and 30
Work used, constructed or effected or to be used, constructed 31
or effected on the Site for a hotel, casino and other Uses in 32
accordance with this Agreement including-- 33
(a) restaurants, convention centre, theatre and associated 34
facilities and parking; and 35
(b) a commercial development which includes or may 36
include indoor and outdoor bars and bottle departments 37
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for the retail sale of liquor to the public, restaurants and 1
fast food areas for the retail sale of food to the public, 2
entertainment areas and associated facilities and 3
parking. 4
Breakwater Island Trust means the trusts constituted by the 5
Trust Deed. 6
Brief to Finalists means that document which is headed 7
Introduction of Casino Operations to Queensland--Brief to 8
Finalists and is dated October, 1981 and which explains the 9
State's detailed conditions and requirements for awarding a 10
casino licence and further describes the submission format 11
necessary for review and assessment by the State. 12
Casino means those areas of the Breakwater Island 13
Casino-Hotel Complex identified in the Casino Licence. 14
Casino Gross Revenue means casino gross revenue as defined 15
in the Control Act. 16
Casino Licence means the licence dated 14 May 1986 granted 17
pursuant to the Control Act in respect of the Casino. 18
Casino Part means the part of the Breakwater Island 19
Casino-Hotel Complex that is a Casino. 20
Chief Executive means, unless specified otherwise in this 21
Agreement, the chief executive of the department responsible 22
for the Control Act. 23
Control Act means the Casino Control Act 1982. 24
Corporations Act means the Corporations Act 2001 of the 25
Commonwealth of Australia and the regulations made under 26
that Act, and includes-- 27
(a) the Act and regulations as amended from time to time; 28
and 29
(b) if any law of the Commonwealth is substituted for the 30
Act or regulations--the substituted law. 31
Crown Land has the meaning given in the Land Act 1962. 32
decision means a decision, report or recommendation made or 33
proposed to be made or required to be made and includes-- 34
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(a) a matter appearing or purporting to be a decision, report 1
or recommendation; and 2
(b) a matter relating to or appearing or purporting to relate 3
to a decision, report or recommendation. 4
Development means-- 5
(a) a Material Change of Use; or 6
(b) Work; or 7
(c) Reconfiguring a Lot; or 8
(d) the carrying out of a Prescribed Activity. 9
Development Application means an application to the 10
Minister for approval of Regulated Development in respect of 11
the Breakwater Island Casino-Hotel Complex or the Site 12
pursuant to clause 15. 13
Development Approval means an approval granted by the 14
Minister in respect of a Development Application and 15
includes other working drawings and specifications approved 16
by the Minister as part of the Development Approval which 17
will result in variation to the Schematic Design Drawings. 18
Development Legislation means any-- 19
(a) legislation of whatsoever nature relating to development 20
as defined in the Integrated Planning Act 1997 21
including, without limitation, the Building Act 1975, the 22
Water Act 2000, Plumbing and Drainage Act 2002, the 23
Coastal Protection and Management Act 1995, the 24
Local Government Act 1993 and the Integrated 25
Planning Act 1997; and 26
(b) Planning Instrument whether or not made under the 27
legislation specified in paragraph (a); and 28
(c) other statutory provisions regulating the Development of 29
the Site. 30
Foundation Agreement means the agreement dated 14 31
November 1984 between the then trustee of Breakwater Island 32
Trust and other parties, as amended from time to time. 33
Founders means the founders identified from time to time in 34
the Foundation Agreement. 35
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Game means a game as that term is defined in the Control Act. 1
gaming machine means any device that is designed so that-- 2
(a) it may be used for the purpose of playing a game of 3
chance or a game of mixed chance and skill; and 4
(b) it may be operated, wholly or partly-- 5
(i) by the insertion of Australian currency or a chip 6
into the device; or 7
(ii) by the use of gaming machine credits; or 8
(iii) by the electronic transfer of gaming machine 9
credits to the device; or 10
(iv) by the use of gaming machine credits held, stored 11
or accredited by the device or elsewhere. 12
gaming machine credit means a credit of Australian currency, 13
or chips, registered by a gaming machine. 14
Jupiters means Jupiters Limited ACN 010 741 045. 15
Land Act means the Land Act 1994. 16
Liquor Act means the Liquor Act 1992. 17
Local Government means the Townsville City Council 18
constituted under the Local Government Act 1993 and any 19
local government or joint local government established under 20
the Local Government Act 1993 having jurisdiction in respect 21
of the Local Government Area in which the Site is situated. 22
Local Government Area means the area in which the Local 23
Government has jurisdiction including any place under the 24
control of the Local Government outside the boundaries of the 25
area. 26
Management Agreement means the agreement dated 21 27
December 1999 between Perpetual Trustees Queensland 28
Limited ACN 009 656 811, Jupiters and Breakwater Island, as 29
amended from time to time. 30
Marina means a marina or marinas of not more than a 31
maximum of 700 berths or moorings established or to be 32
established on the Marina Basin. 33
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Marina Basin means the area of land and water comprising 1
the Marina Basin as identified on the plan in Schedule 1 as the 2
Marina Basin. 3
Marina Entrance Channel means the entrance channel into 4
the Marina as identified on the plan in Schedule 1 as the 5
Marina Entrance Channel. 6
Material Change of Use means a change of the Use of the 7
Breakwater Island Casino-Hotel Complex or the Site. 8
Minister means unless specified otherwise in this Agreement, 9
the Minister of the Crown for the time being charged with the 10
administration of the Control Act. The term includes any 11
Minister of the Crown who is temporarily performing the 12
duties of the Minister. 13
Offshore Breakwater means the breakwater shown as the 14
Offshore Breakwater in the Schematic Design Drawings of 15
not less than 250 metres in length. 16
person includes a company, trustee, corporation, firm and any 17
other body of persons having legal entity as such body as well 18
as a natural person. 19
Personal Licence means a consent, permit, licence, 20
authorisation, registration, membership or approval under 21
Development Legislation (including all the conditions of the 22
consent, permit, licence, authorisation, registration, 23
membership or approval) that is-- 24
(a) required to be held by a person carrying out an activity; 25
and 26
(b) personal to the person carrying out the activity and does 27
not attach to land and bind the owner and the owner's 28
successors in title of the land. 29
Example-- 30
A flammable and combustible liquids licence under the 31
Dangerous Goods Safety Management Regulation 2001 and a 32
registration certificate under the Environmental Protection 33
Act 1994. 34
Planning Instrument means any statutory instrument 35
regulating Development. 36
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Premium Junket Revenue means premium junket revenue as 1
defined in the Control Act. 2
Prescribed Activity means-- 3
(a) an Environmentally Relevant Activity as defined in the 4
Environmental Protection Act 1994; and 5
(b) an activity for which-- 6
(i) a Personal Licence is required to be held by 7
Development Legislation at the commencement of 8
this Agreement; and 9
(ii) as a result of legislative change an approval is 10
required to be held by Development Legislation 11
which attaches to land and binds the owner and the 12
owner's successors in title of the land. 13
Prescribed Development Legislation means the following 14
Development Legislation-- 15
(a) Standard Building Regulation 1993; and 16
(b) Water Act 2000; and 17
(c) Plumbing and Drainage Act 2002; and 18
(d) Fire and Rescue Service Act 1990; and 19
(e) Workplace Health and Safety Act 1995; and 20
(f) State laws generally applicable to Work. 21
Prescribed Work means Work other than operational work as 22
defined in the Integrated Planning Act 1997. 23
Public Official includes a minister, an officer of the public 24
service and an officer or employee of a Public Sector Entity. 25
Public Sector Entity means-- 26
(a) a department or part of a department; or 27
(b) an agency, authority, commission, corporation, 28
instrumentality, office or other entity, established under 29
an Act for the public or a State purpose. 30
Reconfiguring a Lot has the meaning given in the Integrated 31
Planning Act 1997. 32
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Regulated Development means-- 1
(a) Development other than-- 2
(i) Prescribed Work; and 3
(ii) Work (other than Prescribed Work) which is not 4
being carried out as a part of a Material Change of 5
Use or Reconfiguring a Lot pursuant to clause 6
15(1); and 7
(b) the carrying out of a Prescribed Activity. 8
Example-- 9
Regulated Development means-- 10
(a) a Material Change of Use; and 11
(b) Reconfiguring a Lot; and 12
(c) Work other than-- 13
(i) building work, plumbing work or drainage work; 14
and 15
(ii) operational work which is not being carried out as 16
part of a Material Change of Use or Reconfiguring 17
a Lot; and 18
(d) a Prescribed Activity involving the carrying out of an 19
environmentally relevant activity. 20
Review Act means the Judicial Review Act 1991. 21
Schematic Design Drawings means-- 22
(a) the schematic design drawings including all plans, 23
drawings, reports or other material relating to the 24
schematic design drawings which were tabled in 25
Parliament; and 26
(b) all variations and additional plans, drawings, reports and 27
other material relating to the schematic design drawings 28
which were approved under the Agreement; and 29
(c) the amended schematic design drawings that are 30
prepared pursuant to clause 21. 31
Share means a share or stock in Jupiters. 32
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Shareholder means the person who for the time being is 1
registered under the provisions of Jupiters' Constitution as the 2
holder of a Share and includes persons jointly so registered. 3
Site means-- 4
(a) all that area of land identified on the plan in Schedule 1 5
as the Site including the land covered by water and the 6
land within any road whether constructed or otherwise 7
for which the Trustee is the registered owner or lessee; 8
and 9
(b) any future description of the land specified in paragraph 10
(a) consequent upon any resurvey of that land. 11
Special Facility Licence means Special Facility Licence No. 12
45100022. 13
Special Lease means Special Lease SL44/47072. 14
State law means a law other than a law made by the Local 15
Government or by the Commonwealth. 16
Townsville City Council Agreement means the agreement 17
dated 22 November 1984 between the Local Government and 18
the then trustee of the Breakwater Island Trust and the 19
schedules thereto as amended from time to time. 20
Townsville Harbour Board Agreement means the agreement 21
dated 27 November 1984 between the then Townsville 22
Harbour Board and the then trustee of the Breakwater Island 23
Trust and the schedules thereto as amended from time to time. 24
Transport Infrastructure Act means the Transport 25
Infrastructure Act 1994. 26
Trust Deed means the trust deed dated 22 November 1984 27
which established the Breakwater Island Trust. 28
Trustee means Breakwater Island or any other person from 29
time to time acting in the capacity of trustee or responsible 30
entity of the Breakwater Island Trust pursuant to the Trust 31
Deed or the Corporations Act. 32
Trust Fund means all the cash and investments and all other 33
property whatsoever for the time being held by the Trustee 34
upon the trusts as are provided for in the Trust Deed. 35
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Unit means that interest or part of the Trust Fund as is 1
provided for in the Trust Deed. 2
Unitholder means the person who for the time being is 3
registered under the provisions of the Trust Deed as the holder 4
of a Unit and includes persons jointly so registered. 5
Use includes any ancillary use. 6
Western Breakwater means the breakwater existing at the date 7
of this Agreement which adjoins Ross Creek as shown in the 8
Schematic Design Drawings. 9
Work means building work, operational work, plumbing work 10
and drainage work as defined in the Integrated Planning Act 11
1997. 12
2 Interpretation 13
(1) Unless the context otherwise requires, words importing a 14
singular gender shall include any other gender; the singular 15
includes the plural and vice versa; person includes corporation 16
and/or bodies corporate; whenever a corporation shall be a 17
party hereto the words designating such corporation herein 18
shall extend to and include such corporation, its successors in 19
titles and permitted assigns; whenever a person shall be a 20
party hereto the words designating such person herein shall 21
extend to and include such person and that person's executors, 22
administrators and assigns; where two or more parties are 23
parties to a covenant, agreement, undertaking or provision of 24
any kind hereunder, then whether those parties are referred to 25
individually herein or designated and referred to together by a 26
word in the singular person, such covenant, agreement, 27
undertaking or provision of any kind whatsoever shall bind 28
such parties jointly and each of them severally. 29
(2) Unless the context otherwise requires, whenever there is any 30
covenant on the part of the Trustee or obligation placed on the 31
Trustee (express or implied) then any costs associated with the 32
performance of that covenant or obligation shall be at the 33
expense of the Trustee. 34
(3) Headings have been inserted for ease of reference only and do 35
not affect the interpretation of this Agreement. 36
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3 Counting of days 1
Unless nominated specifically otherwise within a particular 2
clause herein, the counting of days is to be based on working 3
week days (Monday to Friday inclusive) but excluding public 4
holidays occurring in the Local Government Area. 5
4 Legislative Acts 6
Any reference to any primary or subordinate legislation, 7
unless the context otherwise requires shall include that 8
primary or subordinate legislation amending the same or in 9
substitution therefor. 10
5 Authority to enter into Agreement 11
The State acknowledges and confirms that approval has been 12
given in accordance with the Agreement Act for the Minister, 13
for and on behalf of the State, to enter into this Agreement 14
with the Trustee and Jupiters and that pursuant to the 15
Agreement Act this Agreement is taken to be ratified by 16
Parliament for the purposes of section 19 (Agreement to 17
precede grant of casino licence) of the Control Act. 18
6 Responsibilities of the Trustee 19
The benefits that are expressed to be conferred upon, and the 20
obligations that are expressed to be imposed upon, the Trustee 21
pursuant to this Agreement shall be so conferred and imposed 22
upon the Trustee in accordance with the respective functions 23
powers and responsibilities of the Trustee set forth in the Trust 24
Deed. 25
7 Recourse to Trustee's assets 26
Neither the State nor any person to whom the Trustee is 27
liable-- 28
(a) under or pursuant to this Agreement or the Agreement 29
Act or an agreement entered into by the Trustee in 30
pursuance of any of the matters provided for or 31
contemplated in this Agreement or the Agreement Act; 32
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(b) under or pursuant to the Control Act; 1
(c) in respect of or incidental to the acquisition by the 2
Trustee of the Site, the design and construction of the 3
Breakwater Island Casino-Hotel Complex and the 4
management and operation of the Breakwater Island 5
Casino-Hotel Complex; 6
(d) in respect of or incidental to the Development of the 7
Site; 8
shall be entitled to have recourse, in satisfaction of such 9
liability, to any assets held by the Trustee in its personal 10
capacity or in its capacity as trustee of any trust other than the 11
Breakwater Island Trust and the recourse of the State and/or 12
any such person shall be limited to the Trust Fund; 13
PROVIDED THAT nothing in the foregoing provisions of this 14
clause shall limit the liability of the Trustee to the Unitholders 15
for breach of trust where the Trustee fails to show the degree 16
of care and diligence required of a Trustee or responsible 17
entity having regard to the powers, authorities or discretions 18
conferred on the Trustee by the Trust Deed. 19
8 Variation of the Agreement 20
The terms of this Agreement, and specifically so far as they 21
give to the Trustee the entitlements, benefits and privileges as 22
herein provided, may only be varied in accordance with the 23
Agreement Act. 24
9 Stamp duty 25
Jupiters and the Trustee shall not be liable for any stamp duty 26
on-- 27
(a) this Agreement, the Townsville City Council Agreement 28
and the Townsville Harbour Board Agreement; and 29
(b) any document entered into by the Trustee pursuant to or 30
in accordance with this Agreement where the other 31
party to the document is the State or a Public Sector 32
Entity; and 33
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(c) any contract of sale, memorandum of transfer or lease 1
relating to the transfer or grant of any interest in the Site 2
or any part of the Site to the then trustee of the 3
Breakwater Island Trust; and 4
(d) any copy of any of the aforesaid documents. 5
10 Illegal acts 6
Notwithstanding anything contained in any Act or other 7
statutory provision or rule of law enacted by the State it is 8
hereby acknowledged that any act by the State or the Trustee, 9
connected with, or pertaining to the obligations, titles, rights 10
and privileges of the parties contained in this Agreement, 11
which would, but for the enactment of the Control Act and the 12
Agreement Act, be illegal shall not be illegal. 13
11 Encumbrances to the Casino Licence 14
Subject to any other approvals required under any other Act, 15
the holder of the Casino Licence may mortgage, charge or 16
otherwise encumber its interests in-- 17
(a) the Casino Licence; and 18
(b) the Special Facility Licence; and 19
(c) the Breakwater Island Casino-Hotel Complex and the 20
Site; and 21
(d) the Special Lease; and 22
(e) the rights and benefits of the Trustee under this 23
Agreement; 24
in accordance with section 32 (Mortgage and assignment of 25
casino licence etc.) of the Control Act. 26
12 Bear own costs 27
Each party shall pay its own costs in respect of this 28
Agreement. 29
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PART II--DEVELOPMENT AND USE OF THE BREAKWATER 1
ISLAND CASINO-HOTEL COMPLEX AND RELATED MATTERS 2
13 Application of Development Legislation to Breakwater 3
Island Casino-Hotel Complex and the Site 4
(1) Any Development Legislation in force in the Local 5
Government Area in which the Breakwater Island 6
Casino-Hotel Complex and the Site is situated shall not apply 7
to the Development or Use of the Breakwater Island 8
Casino-Hotel Complex or the Site except to the extent 9
provided for in this Agreement. 10
(2) For the purposes of the Integrated Planning Act 1997, the 11
Development or Use of the Breakwater Island Casino-Hotel 12
Complex or the Site (other than Prescribed Work) shall be 13
exempt development. 14
14 Use of the Breakwater Island Casino-Hotel Complex and 15
the Site Lawful 16
(1) The Breakwater Island Casino-Hotel Complex shall be 17
deemed to be a lawful Use and to be lawfully constructed 18
under any Development Legislation in force in the Local 19
Government Area in which the Breakwater Island 20
Casino-Hotel Complex and the Site is situated. 21
(2) Any Development Legislation in force in the Local 22
Government Area in which the Breakwater Island 23
Casino-Hotel Complex and the Site is situated cannot-- 24
(a) stop the Use of the Breakwater Island Casino-Hotel 25
Complex or the Site from commencing or continuing; or 26
(b) further regulate the Use of the Breakwater Island 27
Casino-Hotel Complex or the Site; or 28
(c) require the Use of the Breakwater Island Casino-Hotel 29
Complex or the Site to be changed; or 30
(d) require the Work constructed or effected or to be 31
constructed or effected in respect of the Breakwater 32
Island Casino-Hotel Complex or the Site in accordance 33
with the Agreement to be altered or removed. 34
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(3) The Breakwater Island Casino-Hotel Complex or the Site 1
cannot be interfered with or interrupted by any Public Sector 2
Entity or any person on the grounds that the Breakwater 3
Island Casino-Hotel Complex or the Site is contrary to any 4
Development Legislation in force in the Local Government 5
Area in which the Breakwater Island Casino-Hotel Complex 6
and the Site is situated. 7
(4) All Planning Instruments in force in the Local Government 8
Area in which the Breakwater Island Casino-Hotel Complex 9
and the Site is situated are deemed to be of no effect to the 10
extent they are inconsistent with this Agreement. 11
15 Development of the Breakwater Island Casino-Hotel 12
Complex and the Site 13
(1) The Trustee may carry out Work being operational work not 14
being carried out as part of a Material Change of Use or 15
Reconfiguring a Lot without the approval of the Minister 16
pursuant to clause 15. 17
(2) Any Development Legislation in force in the Local 18
Government Area in which the Breakwater Island 19
Casino-Hotel Complex and the Site is situated-- 20
(a) only applies to Prescribed Work in respect of the 21
Breakwater Island Casino-Hotel Complex or the Site to 22
the extent that the Prescribed Work must comply with 23
the standards and requirements of the Prescribed 24
Development Legislation; and 25
(b) shall not apply to Development in respect of the 26
Breakwater Island Casino-Hotel Complex or the Site 27
other than as set out in clause 15(2)(a) or otherwise as 28
expressly adopted by this Agreement. 29
(3) If the Trustee proposes to carry out Regulated Development in 30
respect of the Breakwater Island Casino-Hotel Complex or the 31
Site, the Trustee must make application to the Minister for 32
approval of the Regulated Development. 33
(4) The Trustee must make application to the Minister by lodging 34
with the Chief Executive-- 35
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(a) a submission comprising such drawings, reports, or 1
other material as is necessary to illustrate the Regulated 2
Development; and 3
(b) amended Schematic Design Drawings containing 4
particulars of the Regulated Development; and 5
(c) such other information which may be required by the 6
Chief Executive. 7
(5) The Minister must-- 8
(a) consider the application; and 9
(b) make a decision in respect of the application in 10
accordance with clause 15(6); and 11
(c) advise the Trustee in writing of the decision. 12
(6) The Minister may subject to clause 15(7)-- 13
(a) approve the application in whole or in part 14
unconditionally; or 15
(b) approve the application in whole or in part subject to 16
conditions; or 17
(c) refuse the application in whole or in part; or 18
(d) deal with the application under any combination of 19
clauses 15(6)(a), 15(6)(b) and 15(6)(c). 20
(7) The Minister may refuse the Development Application only if 21
in the case of a Regulated Development involving-- 22
(a) a Material Change of Use, the Material Change of Use 23
is-- 24
(i) not of a like nature to the Uses comprising the 25
Breakwater Island Casino-Hotel Complex; and 26
(ii) in the Minister's discretion an undesirable 27
Development of the Site; or 28
(b) Reconfiguring a Lot, the Reconfiguring a Lot is in the 29
Minister's discretion an undesirable Development of the 30
Site; or 31
(c) Work-- 32
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(i) the Work does not comply with the standards and 1
requirements applicable to Work contained in the 2
Prescribed Development Legislation; and 3
(ii) compliance with the standards and requirements 4
applicable to Work contained in the Prescribed 5
Development Legislation cannot be achieved by 6
the imposition of conditions; or 7
(d) the carrying out of a Prescribed Activity, the carrying 8
out of the Prescribed Activity is in the Minister's 9
discretion an undesirable Development of the Site. 10
(8) If Regulated Development involves a Material Change of Use 11
the Trustee must before carrying out the Regulated 12
Development, take all reasonable steps to negotiate with all 13
Public Sector Entities, to the satisfaction of the Minister, all 14
matters (including financial contributions) which but for 15
clause 15(2) could have been lawfully required as a condition 16
of the consent, permission or approval of the Public Sector 17
Entities under any Development Legislation with respect to 18
that Regulated Development. 19
(9) If Regulated Development involves Work then in relation to 20
that part of Regulated Development which is Work, the 21
Minister is hereby empowered to authorise, either generally or 22
in a particular case, any person to exercise a power, authority 23
or discretion or to perform a function or duty which is 24
conferred or imposed on the Minister pursuant to clause 15. 25
(10) If Regulated Development involves Reconfiguring a Lot, then 26
in relation to that part of Regulated Development which is 27
Reconfiguring a Lot, the Minister shall assess the application 28
as if it were an application for Reconfiguring a Lot under the 29
Integrated Planning Act 1997. 30
(11) The Trustee shall, if required by the Chief Executive, within 1 31
month of 30 June of each year or such longer period approved 32
by the Chief Executive provide a report to the Chief Executive 33
of all Uses carried out on the Site or Breakwater Island 34
Casino-Hotel Complex since the last report. 35
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16 Breakwater Island Casino-Hotel Complex to Comply 1
The Breakwater Island Casino-Hotel Complex must comply 2
with-- 3
(a) a Development Approval including any condition in the 4
Development Approval where the Regulated 5
Development authorised by the Development Approval 6
has been started; and 7
(b) Development Legislation only-- 8
(i) in respect of Personal Licences that may be 9
required to be held by Development Legislation; 10
and 11
(ii) to the extent that the standards and requirements 12
applicable to Work contained in the Prescribed 13
Development Legislation are complied with 14
(except to the extent they are inconsistent with a 15
Development Approval); and 16
(c) legislation (including subordinate legislation) other 17
than-- 18
(i) Development Legislation except as otherwise 19
provided for in this Agreement; and 20
(ii) legislation specifically excluded by this 21
Agreement. 22
17 Acknowledgment and Warranties 23
(1) The State acknowledges that in respect of the Breakwater 24
Island Casino-Hotel Complex, the Trustee made the financial 25
contributions and performed the Work which are set out in 26
Schedule 2 in the manner and for the purposes referred to in 27
Schedule 2. 28
(2) Subject to clause 15(8), the parties acknowledge that 29
compliance by the Trustee with the provisions of clause 16 30
shall in no manner whatsoever compel or require the Trustee 31
to carry out any additional Work or to make any financial 32
contributions to any Public Sector Entities in respect of the 33
Use or Development of the Breakwater Island Casino-Hotel 34
Complex which are in addition to those provided for in clause 35
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17(1). This clause does not affect the rights of a Public Sector 1
Entity to require the payment of-- 2
(a) a levy or charge of general application; or 3
(b) a fee for a service provided by that Public Sector Entity 4
in relation to Work. 5
18 Internal Review Procedure--Development Applications 6
(1) If the Minister does not approve the whole or any part of a 7
Development Application, the Minister must-- 8
(a) issue to the Trustee a written notice stating-- 9
(i) the grounds upon which the Minister does not 10
approve the whole or such part of the Development 11
Application; and 12
(ii) that the Trustee may make a written, oral or other 13
type of further submission to the Minister 14
including the introduction of such further 15
alternative proposals for consideration by the 16
Minister as the Trustee deems necessary; and 17
(iii) the time (at least 10 days after the notice is issued 18
to the Trustee) within which the further submission 19
may be made; and 20
(b) consider any further submission made by the Trustee 21
within the time stated in the notice (being not more than 22
20 days after the further submission is made by the 23
Trustee). 24
(2) After considering any further submission made by the 25
Trustee, the Minister must within the time stated in the notice 26
issue to the Trustee-- 27
(a) a written notice stating-- 28
(i) if the Minister does not accept the further 29
submission, that the Trustee modify its 30
Development Application in such manner as will 31
satisfy the Minister; or 32
(ii) if the Minister does accept the further submission, 33
the Minister's approval of the Development 34
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Application of the Trustee in its original form or 1
subject to any modification which the Minister 2
directs; and 3
(b) in the case of that part of a Development Application a 4
statement of reasons containing-- 5
(i) the reasons for the Minister's decision; and 6
(ii) a reference to the evidence or other material on 7
which the reasons were based. 8
(3) In the Minister's consideration of all Development 9
Applications or submissions pursuant to this clause the 10
Minister must have regard to the general design and planning 11
objectives of the State and the Trustee contained in the 12
Schematic Design Drawings. 13
19 Appeal 14
(1) In this clause-- 15
Appeal Court means the Planning and Environment Court 16
established under the Integrated Planning Act 1997. 17
Reviewed Decision means a decision made by the Minister 18
pursuant to clause 18(2). 19
(2) The Trustee may appeal against a Reviewed Decision within 20
20 days after a notice is issued to the Trustee pursuant to 21
clause 18(2). 22
(3) An appeal must be started by-- 23
(a) filing a written notice of appeal with the Appeal Court; 24
and 25
(b) serving a copy of the notice of appeal on the Chief 26
Executive. 27
(4) The Appeal Court may extend the period for appealing. 28
(5) In deciding an appeal, the Appeal Court-- 29
(a) has the same powers as the Minister; and 30
(b) is not bound by the rules of evidence; and 31
(c) must comply with natural justice; and 32
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(d) may hear the appeal in either court or in chambers. 1
(6) An appeal is by way of hearing anew. 2
(7) The Appeal Court may-- 3
(a) confirm the Reviewed Decision; or 4
(b) set aside the Reviewed Decision and return the issue to 5
the Minister with the directions that it considers 6
appropriate; or 7
(c) substitute another decision for the Reviewed Decision, 8
in which case the substituted decision is, for the 9
purposes of this Agreement, taken to be that of the 10
Minister. 11
(8) The jurisdiction given to the Appeal Court under this 12
Agreement is exclusive. 13
20 Time for Approval 14
(1) The Minister must, subject to clause 20(2), decide a 15
Development Application within 20 days of the lodgment of 16
the Development Application. 17
(2) If a Development Application relates to Regulated 18
Development comprising Work as well as a Material Change 19
of Use or Reconfiguring a Lot, the Minister must decide that 20
component of the Development Application being-- 21
(a) the Material Change of Use or Reconfiguring a Lot 22
within 20 days of the lodgment of the Development 23
Application; and 24
(b) the Work within 20 days after the approval of the 25
Material Change of Use or Reconfiguring a Lot. 26
(3) The Minister may extend the decision making period 27
specified in clause 20(1) and (2) by not more than 20 days by 28
written notice given to the Trustee before the end of the 29
decision making period. 30
(4) If the Minister at any time during the period specified in 31
clause 20(1) and (2) or as extended by clause 20(3) requests 32
the Trustee to provide further information relevant to the 33
Development Application, the days between the date that the 34
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information is requested and the date that the information is 1
provided, inclusive of both dates, shall not be counted in the 2
period specified in clause 20(1) and (2) or as extended by 3
clause 20(3). 4
(5) If the Minister has not within the time specified in clause 5
20(1) and (2) or as extended by clause 20(3) advised the 6
Trustee of the Minister's decision-- 7
(a) that the Development Application has to be resubmitted 8
for non-compliance with clause 15(4), giving particular 9
reasons for the determination as to the non-compliance; 10
or 11
(b) that the Development Application is approved in whole 12
or in part; or 13
(c) that a notice pursuant to clause 18(1) has already been 14
issued covering the topic of the Development 15
Application; or 16
(d) that a notice pursuant to clause 18(1) is hereby issued; 17
then the Trustee may at its discretion advise that a 18
Development Approval will be deemed to be in effect by 19
formally advising the Minister. 20
(6) If no written response as required herein has been received 21
within 2 days of the Trustee's notice being served, a 22
Development Approval is deemed to be in effect and the 23
Trustee may proceed with the Regulated Development for 24
which approval was sought. 25
21 Schematic Design Drawings 26
If Development involving Work is commenced on the 27
Breakwater Island Casino-Hotel Complex or the Site, the 28
Trustee shall, as soon as is reasonably practicable, upon the 29
completion of that Work submit to the Chief Executive 30
amended Schematic Design Drawings that incorporate the 31
Work. 32
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22 Casino to comply 1
The Trustee shall ensure that all materials, fittings and 2
equipment utilised in operation of the Casino shall be of a 3
high standard of manufacture and of a quality commensurate 4
with an international class casino-hotel. 5
23 Review of Decisions in respect of Breakwater Island 6
Casino-Hotel Complex and the Site 7
(1) Decisions made in relation to the Development of the 8
Breakwater Island Casino-Hotel Complex or the Site under-- 9
(a) this Agreement, in the case of Regulated Development, 10
shall-- 11
(i) not be subject to review under the Review Act or 12
otherwise; and 13
(ii) only be subject to review in accordance with any 14
review process set out under this Agreement; and 15
(b) Development Legislation, in the case of Prescribed 16
Work as contemplated by clause 15(2)(a), shall-- 17
(i) not be subject to review under the Review Act or 18
otherwise; and 19
(ii) only be subject to review in accordance with any 20
review process set out under that Development 21
Legislation which is applicable to the Prescribed 22
Work. 23
Example for clause 23(1)(a)(ii)-- 24
This Agreement provides for an internal review procedure and 25
appeals in respect of Regulated Development. 26
Example for clause 23(1)(b)(ii)-- 27
Decisions made under Development Legislation in respect of 28
Prescribed Work such as building work shall be subject to any 29
rights of review that are provided for in that Development 30
Legislation which is applicable to building work. 31
(2) In particular, a decision under Part II of this Agreement, or 32
another decision, of a Public Official or Public Sector Entity, 33
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in relation to the Development of the Breakwater Island 1
Casino-Hotel Complex or the Site-- 2
(a) is final and conclusive; and 3
(b) cannot be challenged, appealed against, reviewed, 4
quashed, set-aside, or called into question in any other 5
way, under the Review Act or otherwise (whether by the 6
Supreme Court, another court, a tribunal, an authority or 7
a person); and 8
(c) is not subject to any writ or order of the Supreme Court, 9
another court, a tribunal, an authority or a person on any 10
ground. 11
Examples of writs and orders to which the sub-clause 12
applies-- 13
Example 1-- 14
Writs of mandamus, prohibition and certiorari. 15
Example 2-- 16
Certiorari orders, prohibition orders, prerogative 17
orders, prerogative injunctions, and statutory orders of 18
review, within the meaning of the Review Act. 19
Example 3-- 20
Declaratory and injunctive orders. 21
(3) Without limiting clause 23(2), the Review Act does not apply 22
to the following matters-- 23
(a) conduct engaged in for the purpose of making a decision 24
which has the meaning given by section 8 (Conduct 25
engaged in for making decision--preparatory acts) of 26
the Review Act; and 27
(b) other conduct that relates to the making of a decision; 28
and 29
(c) the making of a decision or the failure to make a 30
decision which has the meaning given by section 5 31
(Meaning of making of a decision and failure to make a 32
decision) of the Review Act; and 33
(d) a decision; 34
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Breakwater Island Casino Agreement Amendment
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under this Agreement, or otherwise, in relation to the 1
Development of the Breakwater Island Casino-Hotel Complex 2
or the Site. 3
(4) In particular, but without limiting clause 23(3), the Supreme 4
Court does not have jurisdiction to hear and determine 5
applications made to it under Part 3, 4 or 5 of the Review Act 6
in relation to matters mentioned in clause 23(3). 7
(5) The Minister's power under this Agreement to decide whether 8
to accept or reject a recommendation of a Public Official or 9
Public Sector Entity is not affected by clause 23(2). 10
PART III--CORPORATE ORGANISATION AND 11
RELATED MATTERS 12
24 Approvals 13
The State has accepted and approved the following-- 14
(a) the Constitution of the Trustee; and 15
(b) the Trust Deed; and 16
(c) the Foundation Agreement; and 17
(d) the Constitution of Jupiters; and 18
(e) the Townsville City Council Agreement; and 19
(f) the Townsville Harbour Board Agreement; and 20
(g) the appointment of the Trustee as the trustee or 21
responsible entity of Breakwater Island Trust. 22
25 Trustee requirements 23
The Trustee shall-- 24
(a) remain the trustee or responsible entity of the 25
Breakwater Island Trust; and 26
(b) be a wholly owned subsidiary of Jupiters PROVIDED 27
THAT any shares in the Trustee may be held by a 28
nominee, approved in writing by the Minister on behalf 29
of Jupiters; and 30
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(c) obtain the prior approval in writing of the Minister to 1
any appointment as a director or alternate director of the 2
Trustee; and 3
(d) ensure that the appointment of the respective auditors 4
under the Trust Deed and of the Trustee shall be in 5
accordance with the provisions of the Trust Deed and 6
the Corporations Act but no person shall be nominated 7
as auditor unless that person's nomination has been 8
approved in writing by the Minister; and 9
(e) notwithstanding clause 25(b), when directed by the 10
Governor-in-Council, which direction shall be final and 11
conclusive and shall not be appealed against, reviewed, 12
quashed or in any other way called in question in any 13
Court on any account whatsoever, enforce the disposal 14
of the shares of any shareholder in the Trustee 15
PROVIDED THAT the Governor-in-Council shall not 16
issue a direction to dispose of shares unless the 17
shareholder is considered not to be a suitable person to 18
be a shareholder having regard to those matters specified 19
in section 20 (Suitability of casino licensee and other 20
persons) of the Control Act; and 21
(f) enforce the vacating from office of any director or 22
alternate director of the Trustee in accordance with any 23
direction to that effect by the Governor-in-Council; and 24
(g) refrain from entering into any loan agreement in its 25
capacity as the trustee or responsible entity of 26
Breakwater Island Trust or any other capacity except 27
with a party or parties or a class of parties approved in 28
writing by the Minister; and 29
(h) make available for inspection by the Minister or the 30
Minister's nominee duly authorised in writing all 31
information held in respect to the ownership, 32
unitholdings, shareholdings, directors or corporate 33
structure of Breakwater Island Trust or the Trustee, and 34
all minutes of meetings of Unitholders, shareholders and 35
directors and other records relating thereto; and 36
(i) make available for inspection by the Minister or the 37
Minister's nominee duly authorised in writing all books, 38
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records and documents relating to the financial 1
transactions, bank accounts, source and application of 2
funds, loans and investments of Breakwater Island Trust 3
and the Trustee as the case may be; and 4
(j) ensure that the Minister or the Minister's nominee duly 5
authorised in writing shall be entitled to attend and 6
speak at any meeting of Breakwater Island Trust or the 7
Trustee as though the Minister were a Unitholder in 8
Breakwater Island Trust or a director of the Trustee, 9
respectively, but nothing contained in this clause shall 10
confer on the Minister or the Minister's nominee a right 11
to vote; and 12
(k) deliver to the Minister a copy of all notices that are 13
forwarded to Unitholders or directors advising of such 14
meetings in the same manner and time frame as if the 15
Minister were a Unitholder or a director; and 16
(l) ensure that the Constitution of the Trustee shall not be 17
altered or amended without the prior approval in writing 18
of the Minister; and 19
(m) ensure that the Trust Deed shall not be altered or 20
amended without the prior approval in writing of the 21
Minister; and 22
(n) refrain from registering any transfer of the Units without 23
the prior approval of the Governor-in-Council; and 24
(o) refrain from issuing any Units without the prior 25
approval of the Governor-in-Council. 26
26 Jupiters requirements 27
Jupiters shall-- 28
(a) submit to the Minister half-yearly within 3 months of 29
the last day of June or December a copy of its financial 30
accounts for the relevant half-year; and 31
(b) as and when requested by notice in writing by the 32
Minister give to the Minister within 10 days of the date 33
of receipt of such notice a copy of any register required 34
to be kept by Jupiters pursuant to the Corporations Act, 35
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PROVIDED THAT the Minister shall not request 1
pursuant to this sub-clause a copy of any such register 2
more than 4 times in any year; and 3
(c) obtain the prior approval in writing of the Minister to 4
any appointment as a director or alternate director or 5
associate director of Jupiters; and 6
(d) when directed by the Minister, issue a notice pursuant to 7
section 672A (Disclosure Notices) of the Corporations 8
Act; and 9
(e) when directed by the Governor-in-Council, which 10
direction shall be final and conclusive and shall not be 11
appealed against, reviewed, quashed or in any other way 12
called in question in any Court on any account 13
whatsoever, enforce the disposal of the Shares of any 14
Shareholder in Jupiters in accordance with the 15
procedure in that respect set forth in the Constitution of 16
Jupiters, PROVIDED THAT the Governor-in-Council 17
shall not issue a direction to dispose of such Shares 18
unless the Shareholder is considered not to be a suitable 19
person to be a Shareholder having regard to those 20
matters specified in section 20 (Suitability of casino 21
licensee and other persons) of the Control Act given 22
after a recommendation from the Minister that such 23
Shareholder is not suitable having regard to the matters 24
set out in section 20 (Suitability of casino licensee and 25
other persons) of the Control Act; and 26
(f) enforce the vacating from office of any director or 27
alternate director or associate director of Jupiters in 28
accordance with any direction to that effect by the 29
Governor-in-Council; and 30
(g) when directed by the Minister require the production of 31
a statutory declaration by any person registered as the 32
holder of any Shares setting forth the name and address 33
of any person with a relevant interest in the same and 34
full particulars of that interest; and 35
(h) refrain from entering into any loan agreement except 36
with a party or parties or a class of parties approved in 37
writing by the Minister; and 38
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(i) except in the case of-- 1
(i) a pro-rata offer of shares to existing Shareholders 2
of shares of a class which is already on issue by 3
Jupiters where notice of the pro-rata offer of shares 4
has been given to the Minister; or 5
(ii) an issue of voting shares pursuant to the terms of 6
any non-voting shares or convertible securities 7
approved in accordance with clause 26(j); 8
refrain from the issue of any voting shares unless the 9
Governor-in-Council has approved such issue and such 10
issue shall be on such terms and conditions as the 11
Governor-in-Council thinks fit; and 12
(j) refrain from issuing any non-voting shares or securities 13
convertible into voting shares unless the Minister has 14
approved such issue and such issue shall be on such 15
terms and conditions as the Minister thinks fit; and 16
(k) ensure that the appointment of the auditors of Jupiters 17
shall be in accordance with the provisions of the 18
Corporations Act and that no person shall be nominated 19
as auditor unless that person's nomination has been 20
approved in writing by the Minister; and 21
(l) ensure that the voting power in Jupiters of any person 22
shall not exceed 5% at any time without the prior 23
approval in writing of the Minister; and 24
(m) ensure that the voting power in Jupiters of any person 25
shall not exceed 10% at any time except in the 26
circumstances where-- 27
(i) their voting power in Jupiters is at least 90%; and 28
(ii) within 3 calendar months of acquiring the voting 29
power referred to in subparagraph (i)-- 30
(A) their relevant interest in Jupiters' voting 31
shares is 100%; and 32
(B) they have a relevant interest in all Jupiters' 33
securities convertible into voting shares; and 34
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(iii) they have the Governor-in-Council's approval, 1
prior to acquiring the interest referred to in 2
subparagraph (i), to-- 3
(A) have the voting power referred to in 4
subparagraphs (i) and (ii); and 5
(B) acquire the relevant interest referred to in 6
subparagraph (ii); and 7
(n) ensure that the total number of shares in any class of 8
non-voting shares in which any person and their 9
associates (other than an Approved Holder) shall have a 10
relevant interest shall not exceed 5% of the total number 11
of shares of that class on issue at any time without the 12
prior approval in writing of the Minister; and 13
(o) ensure that the Constitution of Jupiters shall not be 14
altered or amended without the prior approval in writing 15
of the Minister; and 16
(p) make available for inspection by the Minister or the 17
Minister's nominee duly authorised in writing all 18
information held in respect to the ownership, 19
shareholdings, directors or corporate structure of 20
Jupiters and all minutes of meetings of Shareholders and 21
directors and other records relating thereto; and 22
(q) make available for inspection by the Minister or the 23
Minister's nominee duly authorised in writing all books, 24
records and documents relating to the financial 25
transactions, bank accounts, source and application of 26
funds, loans and investments of Jupiters; and 27
(r) ensure that the Minister or the Minister's nominee duly 28
authorised in writing shall be entitled to attend and to 29
speak at any meeting of Jupiters as though the Minister 30
were a Shareholder in Jupiters but nothing contained in 31
this clause shall confer on the Minister or the Minister's 32
nominee a right to vote; and 33
(s) deliver to the Minister a copy of all notices that are 34
forwarded to Shareholders or directors advising of such 35
meetings in the same manner and time frame as if the 36
Minister were a Shareholder or a director. 37
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27 Structure 1
The following shall be conditions of this Agreement-- 2
(a) there shall be no termination of the Foundation 3
Agreement and no amendment or variation of the terms 4
or conditions of the Foundation Agreement without the 5
prior approval in writing of the Minister; and 6
(b) no party to the Foundation Agreement shall be released 7
or discharged from its obligations under the Foundation 8
Agreement without the prior approval in writing of the 9
Minister; and 10
(c) no party shall be added to the Foundation Agreement 11
without the prior approval of the Governor-in-Council 12
and without such party entering into a supplementary 13
agreement in a form approved by the Minister agreeing 14
to be bound by the provisions of the Foundation 15
Agreement as if an original Founder. 16
28 Disposal of excess Shares 17
Notwithstanding clause 26, a person's voting power or 18
shareholding which is in excess of any of the limitations 19
contained in clause 26(l), (m) or (n) shall not constitute a 20
breach of the conditions of this Agreement if Jupiters shall 21
have acted forthwith to bring about the disposal of the relevant 22
voting Shares or shareholding in accordance with the powers 23
in that behalf contained in the Constitution of Jupiters upon 24
Jupiters becoming aware of the person's voting power or 25
shareholding and that the voting power or shareholding 26
exceeds the relevant limitation PROVIDED THAT the parties 27
acknowledge that Jupiters is unable to refuse to register a 28
transfer of Shares. 29
29 Interpretation of this Part III 30
For the purposes of this Part III a reference to-- 31
(a) a person's voting power shall have the same meaning as 32
a reference in section 610 (Voting Power in a body 33
corporate) of the Corporations Act to a person's voting 34
power; and 35
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(b) a relevant interest in shares shall have the same meaning 1
as a reference to section 608 (Relevant interests in 2
securities) of the Corporations Act; and 3
(c) an associate shall have the same meaning as a reference 4
in Division 2 of Part 1.2 (Associates) of the 5
Corporations Act excluding section 13 (References in 6
chapter 7) and section 14 (References in chapter 8) of 7
the Corporations Act. 8
30 Transitional 9
Jupiters shall not be obliged to seek approval under any of 10
clauses 26(c), (i), (j), (k), (l), (m), (n) and (o) by reason only 11
of it entering into the deed as authorised by the Breakwater 12
Island Casino Agreement Amendment Act 2006 in the absence 13
of any further act or matter that would require it to obtain such 14
an approval. 15
PART IV--CASINO LICENCE AND RELATED MATTERS 16
31 Casino Licence 17
The State granted the Casino Licence to the Trustee. 18
32 Exclusivity 19
(1) The State shall not, except in a casino licensed pursuant to the 20
Control Act, notwithstanding the provisions of any other Act 21
from time to time in force in the State of Queensland 22
authorise, permit or approve in any manner whatsoever and 23
whether pursuant to the Control Act or otherwise the conduct 24
or playing of any of the games listed below or any variation or 25
derivative of such games by the use of any gaming machine-- 26
blackjack; 27
roulette; 28
baccarat; 29
craps; 30
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two-up; 1
mini dice; 2
wheel of fortune; 3
sic-bo. 4
(2) Nothing in this Agreement shall be construed so as to limit or 5
affect the power of the State to authorise, permit or approve in 6
any manner whatsoever pursuant to any Act for the time being 7
in force in the State the conduct or playing of games by the 8
use of gaming machines other than-- 9
(a) those referred to in clause 32(1); and 10
(b) gaming machines that are declared by the Minister by 11
notification published in the Government Gazette to be 12
casino gaming machines as provided for in clause 32(3). 13
(3) The parties hereto agree that the following provisions shall 14
apply with respect to the declaration and notification of 15
gaming machines as casino gaming machines-- 16
(a) the Minister may at any time in the Minister's discretion 17
or upon receipt of an application by the Trustee, make a 18
declaration and notification in respect of any gaming 19
machine including any gaming machine referred to in 20
clause 32(1) but the non-existence of a notification shall 21
not limit or affect the operation of clause 32(1); 22
(b) the Minister shall within 90 days of the receipt thereof 23
or such extended period as the Minister may require 24
consider and determine every application made to the 25
Minister in respect of a gaming machine and, where the 26
Minister refuses the application, the Minister shall 27
notify the applicant in writing of the reasons for the 28
refusal; 29
(c) the Minister may in the Minister's absolute discretion 30
refuse to make a declaration and notification in respect 31
of any gaming machine commonly known as a "poker 32
machine" or any variation or derivative thereof or any 33
gaming machine of a like class or description; 34
(d) where an application is made to the Minister in respect 35
of any gaming machine other than a gaming machine 36
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referred to in clause 32(3)(c), the Minister shall consider 1
the application and determine whether in all the 2
circumstances of the application it is reasonable that it 3
be granted. The Minister shall consider all material 4
submitted to the Minister in writing by the applicant and 5
the State and, in particular the Minister shall consider 6
whether it has been established to the Minister's 7
reasonable satisfaction that the gaming machine is of a 8
class or description that should be reserved for use in a 9
casino licensed pursuant to the Control Act; 10
(e) no such declaration and notification shall be revoked, 11
amended or varied without the prior consent in writing 12
of the Trustee. 13
(4) Subject always to the State giving due effect to the foregoing 14
provisions of this clause, nothing in this Agreement shall be 15
construed so as to limit or affect the power of the State to 16
authorise, permit or approve in any manner whatsoever and 17
whether pursuant to the Charitable and Non-Profit Gaming 18
Act 1999 or any other Act for the time being in force in the 19
State of Queensland-- 20
(a) any art union or lottery that is of a class or description 21
commonly conducted or played in Australia or 22
elsewhere at the date of execution of this Agreement no 23
matter how played; and 24
(b) any art union or lottery that is a variation or derivative 25
thereof or that is of a like class or description no matter 26
how played. 27
33 Casino tax 28
Subject to the provisions of the Control Act and clause 36 the 29
amount of the casino tax to be paid by the Trustee from the 30
Trust Fund shall be in each month in each year the amount 31
equal to the sum of-- 32
(a) 10% of Casino Gross Revenue for the month in 33
question; and 34
(b) 8% of Premium Junket Revenue for the month in 35
question. 36
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34 Liquor Act--Special Facility Licence 1
(1) The Special Facility Licence was granted in respect of the 2
Breakwater Island Casino-Hotel Complex and is taken to be a 3
special facility licence for the purposes of the Liquor Act. 4
(2) The Special Facility Licence shall, subject to this Agreement, 5
be administered in accordance with the Liquor Act. 6
(3) Despite section 9 (Ordinary trading hours) of the Liquor Act 7
but for the purposes of this Agreement, the ordinary trading 8
hours during which the Special Facility Licence permits the 9
sale or consumption of liquor in the Casino Part are the same 10
hours approved (under section 61 (Hours of operation) of the 11
Control Act) for the operation of the Casino Part. 12
PART V--CASINO OPERATIONS AND REVIEW 13
THEREOF 14
35 Hours of operation 15
The State agrees that the Trustee may open and operate the 16
Casino for use by the public on any day in any year save and 17
except those days in any year which the Trustee is precluded 18
from so opening pursuant to section 61(8) (Hours of 19
Operation) of the Control Act for any number of hours on any 20
such day which may be approved by the Minister from time to 21
time, PROVIDED HOWEVER that the Minister shall not 22
restrict the number of hours in which the Casino is open as 23
aforesaid to less than 18 hours in any 1 day unless requested 24
by the Trustee in writing so to do. 25
36 Operational review 26
The State agrees to review the rate of casino tax, the amount 27
of fees and the rate of the community benefit levy as defined 28
in the Control Act payable by the Trustee and the terms and 29
conditions of the operation of the Casino in any circumstances 30
of whatsoever nature arising which in the opinion of the 31
Minister are likely to have an adverse impact on the viability 32
of the Casino. 33
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PART VI--TERMINATION 1
37 Grounds for termination 2
This Agreement, save and except the rights and obligations of 3
the parties hereto and any mortgagee pursuant to clause 38, 4
may be terminated by the Minister in any of the following 5
events-- 6
(a) If there is a substantial breach by any of the parties 7
hereto other than the State of its obligations under this 8
Agreement in respect of which the Minister shall have 9
delivered to each of such parties and to any mortgagee a 10
notice in writing setting forth particulars of the breach 11
or default and which shall not have been remedied or not 12
have taken steps to have remedied to the satisfaction of 13
the Minister within three months from the date of such 14
notice to remedy; 15
(b) If-- 16
(i) any distress or execution is levied against the Trust 17
Fund which is for an amount in excess of ONE 18
MILLION DOLLARS ($1,000,000) and which is 19
not discharged within thirty (30) days from the 20
date upon which the levy is made; or 21
(ii) subject to the provisions of clause 11, the benefit of 22
this Agreement is in any way whatsoever pledged, 23
encumbered, mortgaged or assigned without the 24
prior written consent of the Minister in accordance 25
with the provisions of section 32 (Mortgage and 26
assignment of casino licence etc.) of the Control 27
Act; 28
and the Minister shall have delivered to the relevant 29
party, as the case may be, and to any mortgagee a notice 30
requiring that party to remedy such circumstance and 31
neither that party nor the mortgagee shall have remedied 32
or taken steps to remedy such circumstance to the 33
satisfaction of the Minister within a reasonable time 34
(being not less than 10 days) from the date of such 35
notice to remedy; 36
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(c) If any casino licence in respect of the Casino is at any 1
time cancelled or surrendered. 2
38 Appointment of administrator 3
(1) In the event that the Casino Licence is cancelled or suspended 4
for any reason whatsoever, the following provisions shall 5
apply-- 6
(a) The Governor-in-Council shall appoint an 7
Administrator-- 8
(i) in the case of cancellation of the licence as 9
aforesaid within 7 days of the date of such 10
cancellation; or 11
(ii) in the case of suspension of the licence as aforesaid 12
for a period of not less than three months, within 7 13
days of the date of receipt by the Minister of a 14
request from the Trustee to appoint an 15
Administrator. 16
(b) In the event of a receiver and manager having been 17
approved or appointed prior to either clause 38(1)(a)(i) 18
or clause 38(1)(a)(ii) becoming effective, the 19
Governor-in-Council shall appoint that person as 20
Administrator for the purposes of this Agreement. 21
(c) Notwithstanding the provisions of sections 19 22
(Agreement to precede grant of casino licence) and 21 23
(Hotel-casino complex owner or State as licensee) of the 24
Control Act or any provision of this Agreement the 25
Governor-in-Council shall within the period of 7 days 26
referred to in clause 38(1)(a) grant a casino licence to 27
the Administrator. 28
(d) The Administrator shall pursuant to the casino licence to 29
be granted pursuant to clause 38(1)(c) manage and 30
operate in accordance with the provisions of the Control 31
Act the Casino as the agent of the Trustee. 32
(e) The Trustee and/or the Administrator if such 33
Administrator has been appointed pursuant to clause 34
38(1)(b) may at any time and from time to time but 35
always subject to the rights of any mortgagee pursuant 36
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to its security and also pursuant to the provisions of 1
section 32 (Mortgage and assignment of casino licence 2
etc.) of the Control Act during a period of 12 calendar 3
months from the date of the appointment of the 4
Administrator introduce a proposed assignee to whom 5
the provisions of section 32 (Mortgage and assignment 6
of casino licence etc.) of the Control Act shall apply as 7
if such assignee was proposed by a mortgagee wishing 8
to enforce its security. 9
(f) Should the proposed assignee be acceptable to the 10
Governor-in-Council in the terms of clause 38(1)(e) the 11
Governor-in-Council shall terminate the appointment of 12
the Administrator and assign to the proposed assignee in 13
accordance with the procedure set out in section 32 14
(Mortgage and assignment of casino licence etc.) of the 15
Control Act the casino licence issued to the 16
Administrator. 17
(g) In the event that the Trustee and/or the Administrator are 18
unable to introduce an acceptable assignee as 19
hereinbefore provided in clause 38(1)(e) the 20
Administrator shall while continuing to operate the 21
Casino as hereinbefore in this clause provided but 22
always subject to any rights of any mortgagee pursuant 23
to its security and also the mortgagee's rights pursuant 24
to the provisions of section 32 (Mortgage and 25
assignment of casino licence etc.) of the Control Act 26
dispose of the Breakwater Island Casino-Hotel Complex 27
and arrange for the assignment of the casino licence at 28
the highest attainable price to the assignee who is 29
approved by the Governor-in-Council as if that assignee 30
has been nominated by a mortgagee seeking to enforce 31
its security in accordance with section 32 (Mortgage and 32
assignment of casino licence etc.) of the Control Act. 33
(h) The casino licence granted to an Administrator shall not 34
be cancelled or suspended prior to its assignment as 35
referred to in clause 38(1)(f) but the 36
Governor-in-Council may from time to time within the 37
Governor-in-Council's discretion remove an 38
Administrator and appoint another Administrator in that 39
person's place and shall remove an Administrator who is 40
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not a receiver or manager approved pursuant to section 1
32(2)(b) (Mortgage and assignment of casino licence 2
etc.) of the Control Act and replace that person with an 3
Administrator who becomes so approved. 4
(i) If the term of any suspension mentioned in clause 5
38(1)(a) is reduced after a request for the appointment 6
of an Administrator has been made, the 7
Governor-in-Council shall terminate the appointment of 8
any Administrator the Governor-in-Council has 9
appointed following a request that the appointment be so 10
terminated, and-- 11
(i) if the Trustee's Casino Licence has been cancelled, 12
the Governor-in-Council shall assign to the Trustee 13
the casino licence granted to the Administrator; or 14
(ii) if the Trustee's Casino Licence has not been 15
cancelled, the Governor-in-Council shall cancel 16
the casino licence granted to the Administrator. 17
(j) An Administrator may be appointed on such terms 18
which are not inconsistent with this clause as the 19
Governor-in-Council considers desirable in the 20
circumstances of the appointment. 21
(2) The parties hereto acknowledge confirm and agree that any 22
termination of this Agreement pursuant to the provisions of 23
clause 37 shall not in any manner whatsoever terminate or 24
reduce the effect of clause 38(1) and the rights and obligations 25
of the parties shall maintain continue and be of full force and 26
effect as if this Agreement had not been terminated. 27
39 Impact of termination on the development of the 28
Breakwater Island Casino-Hotel Complex or the Site 29
In the event that this Agreement is terminated for any reason 30
whatsoever the provisions of clause 14 shall apply to 31
Development in respect of the Breakwater Island 32
Casino-Hotel Complex and the Site which at the date of 33
termination has been carried out or approved in accordance 34
with this Agreement. 35
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40 Impact of termination on the Special Facility Licence 1
The State acknowledges and agrees that the Special Facility 2
Licence granted pursuant to the Liquor Act shall, 3
notwithstanding any termination of this Agreement by 4
whatsoever means or any cancellation or suspension of the 5
Casino Licence by whatsoever means, not be cancelled or 6
suspended but rather shall remain in full force and effect so far 7
as it relates to all areas of the Breakwater Island Casino-Hotel 8
Complex other than the Casino until it shall be cancelled or 9
suspended pursuant to the provisions of the Liquor Act. 10
PART VII--SPECIAL PROVISIONS 11
41 Marina Basin and Marina Entrance Channel deemed to be 12
land 13
(1) The Marina Basin, the Marina Entrance Channel and any 14
other land that is the subject of any grant, demise or other 15
estate or interest under the Agreement or the Townsville 16
Harbour Board Agreement shall be deemed to be land within 17
the Parish of Coonambelah, County of Elphinstone. 18
(2) To remove doubt it is declared that the Marina Basin and the 19
Marina Entrance Channel are not a canal for the purpose of 20
the Coastal Protection and Management Act 1995 including 21
section 121 of the Coastal Protection and Management Act 22
1995. 23
42 Lot 795 on CP846293 and Lot 796 on EP2296 deemed to 24
be land 25
Lot 795 on CP846293 and Lot 796 on EP2296 shall be 26
deemed to be land-- 27
(a) within the Parish of Coonambelah, County of 28
Elphinstone; and 29
(b) within the Local Government Area of the Local 30
Government. 31
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43 Special Lease 1
(1) The Special Lease was granted under the Land Act 1962 and 2
is taken to be a term lease pursuant to section 476 (Existing 3
lease continues) of the Land Act. 4
(2) Unless and until clause 61 applies, the Marina Entrance 5
Channel and the Marina Basin shall be part of the port 6
managed by the Townsville Port Authority. 7
44 Restricted Area 8
(1) In this clause 44(1) the Restricted Area means any land that is 9
Crown Land or land held by the Townsville Port Authority 10
and on which any part of the breakwaters, retaining walls and 11
revetments shown in the Schematic Design Drawings (other 12
than the Offshore Breakwater and the Western Breakwater) is 13
constructed. For better protecting the rights and interests of 14
the Trustee, it is agreed that-- 15
(a) no person including any Public Sector Entity shall be 16
permitted to erect any structure of any kind or claim any 17
right of support on, over or against those parts of the 18
breakwaters, retaining walls or revetments on the 19
Restricted Area other than the Townsville Port 20
Authority or lessee from the State or any lessee of the 21
Townsville Port Authority of any part or whole of the 22
Marina Basin in respect of those parts of the Restricted 23
Area retaining the Marina Basin to the extent necessary 24
for the proper use and enjoyment of the Marina; and 25
(b) no person except a Public Sector Entity expressly 26
authorised by the State (including the Townsville Port 27
Authority) or the Trustee or a lessee from the State 28
authorised to have access, shall be permitted to have 29
access to or over those parts of the breakwaters, 30
retaining walls or revetments constructed on the 31
Restricted Area other than the Marina Basin; and 32
(c) nothing contained in this clause 44(1) shall prevent the 33
Townsville Port Authority or the State doing all things 34
necessary in the ordinary course of maintaining the 35
breakwaters, retaining walls and revetments in good and 36
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proper order and condition in the event of a failure by 1
other parties to maintain. 2
(2) The State agrees that any rights or benefits provided for in 3
clause 44(1) to any Public Sector Entity including the 4
Townsville Port Authority or to any other person shall not be 5
exercised in such a manner as to cause or result in undue 6
detriment or loss of amenity to or financial loss or damage to 7
any registered proprietor or occupier for the time being of any 8
land having a frontage to the Marina Basin or the Marina 9
Entrance Channel. 10
45 Easements of lateral support for breakwaters, retaining 11
walls and revetments 12
(1) In this clause 45, lot means-- 13
(a) in relation to the State, any Crown Land (other than land 14
within the Marina Entrance Channel or the Marina 15
Basin) and on which any part of the breakwaters, 16
retaining walls and revetments shown in the Schematic 17
Design Drawings is constructed; 18
(b) in relation to the Trustee, the land owned by the Trustee 19
(other than land within the Marina Entrance Channel or 20
the Marina Basin), and which has a common boundary 21
with any Crown Land referred to in clause 45(1)(a). 22
(2) In respect of each lot of which the State is the owner, there 23
shall be implied as against the State and in favour of the 24
Trustee its successors or assigns as the owner of the adjacent 25
lot an easement for the lateral support of that lot and any 26
buildings or structures thereon to the extent that the Crown 27
Land and the structures thereon are capable of affording 28
support. 29
(3) In respect of each lot of which the Trustee is the owner, there 30
shall be implied as against the Trustee its successors or 31
assigns and in favour of the State as the owner of the adjacent 32
lot an easement for the lateral support of the structures on the 33
Crown Land to the extent that the land of the Trustee and the 34
buildings or structures thereon are capable of affording 35
support. 36
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PART VIII--GENERAL 1
46 Approvals and notices 2
(1) All approvals notices and other writing required or 3
appropriate to be given under the provisions of this 4
Agreement shall be deemed to be properly served if delivered 5
in writing personally or sent by post or by facsimile 6
transmission to-- 7
(a) the Minister at the Minister's principal office in 8
Brisbane; or 9
(b) Jupiters at its registered office; or 10
(c) the Trustee at its registered office; 11
and such other persons or addresses as each party shall from 12
time to time designate in writing to the other and any such 13
notice or other writing sent by post or facsimile transmission 14
shall unless the contrary be proved be deemed to have been so 15
given when it would have been delivered in the ordinary 16
course of post. 17
(2) Although copies of such approvals, notices and other 18
documents required to be given under the provisions of this 19
Agreement to a nominated representative may also be 20
forwarded to such other person specifically designated in 21
writing by that nominated representative such additional 22
copies do not substitute for the primary service. 23
(3) If, before 4.00 p.m. local time in the place of delivery, a party 24
delivers a notice-- 25
(a) by hand; or 26
(b) by facsimile and the sending party completes the 27
transmission; 28
the notice will be taken as given on the day of delivery of 29
transmission, and in any other case, on the next day. 30
(4) If a party gives the notice by post the notice will be taken as 31
given on the second business day in the place of delivery after 32
the notice is posted unless it can be established that the notice 33
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was not received until a subsequent date, in which case that 1
later date will be the date notice was given. 2
(5) If a party gives notice by facsimile transmission and the 3
transmission is not fully intelligible, or if the sending party, at 4
the time of transmission, has reason to believe that the 5
facsimile transmission is not fully intelligible, the party may 6
not rely upon this clause to prove the giving of the notice. 7
(6) The receiving party shall not object to a facsimile 8
transmission as not being fully intelligible unless the 9
receiving party requests a re-transmission within 2 hours. 10
(7) If a facsimile transmission is completed within 2 hours of 5.00 11
p.m. on a day and is unintelligible, the receiving party has 12
until 10.00 a.m. on the next business day to request the 13
re-transmission. 14
(8) The party giving the notice or its agent shall sign the notice. 15
The appearance of the name of the person signing at the end 16
of a facsimile transmission is sufficient evidence of signing. 17
(9) The address, and facsimile number of the parties for the 18
purposes of this clause are to be advised in writing. 19
(10) The parties may give notice of another address or facsimile 20
number (within Australia) to the other party and the new 21
address shall be the address for service of the party for the 22
purpose of this clause. 23
47 Waiver 24
No omission by any party to require the performance by 25
another or the others of any of the terms or conditions of this 26
Agreement nor any forbearance or indulgence granted or 27
shown by any party to another or others shall release 28
discharge or in any manner affect or prejudice the right of a 29
party at any time to require strict and full performance by 30
another or others of any or all of the terms or conditions to be 31
observed or performed hereunder. 32
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48 Governing law 1
The law of this Agreement shall be the law of the State of 2
Queensland. 3
49 Delegations 4
(1) The Minister may delegate in writing the Minister's powers, 5
rights or obligations pursuant to this Agreement, or any of 6
them, to the Chief Executive or the Executive Director of the 7
Queensland Office of Gaming Regulation. 8
(2) The Chief Executive may delegate in writing the Chief 9
Executive's powers, rights or obligations pursuant to this 10
Agreement to an officer of the public service within that unit 11
of the public sector for which the Chief Executive is 12
responsible. 13
50 Extensions of time 14
In any case in which the Trustee is obliged to perform or do an 15
act or thing by or within a time specified in this Agreement, 16
the Minister may at any time and from time to time in the 17
Minister's absolute discretion extend the time specified for 18
performing or doing that act or thing. 19
PART IX -- TRANSITIONAL ARRANGEMENTS IN 20
RESPECT OF SURPLUS CASINO LAND AND FUTURE 21
DEVELOPMENT AREA 22
Division 1--Preliminary 23
51 Definitions 24
In this Part IX-- 25
Development has the meaning given in the Integrated 26
Planning Act 1997. 27
Future Development Area means-- 28
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(a) all that area of land generally in accordance with the 1
land identified on the plan in Schedule 1 as the Future 2
Development Area including the land covered by water; 3
and 4
(b) any future description of the land specified in paragraph 5
(a) consequent upon any resurvey of that land. 6
Future Development Area Land Platforms means the land 7
platforms in the Future Development Area shown in the 8
Future Development Area Scheme. 9
Future Development Area Port Protection Code means a code 10
for the purpose of minimising the potential impact of the 11
infrastructure and operations of the Townsville Port on the 12
Development of the Future Development Area notified by the 13
chief executive of the department responsible of the Transport 14
Infrastructure Act 1994 as having been authorised to the Local 15
Government, the Townsville Port Authority and the owner or 16
owners of the Future Development Area prior to the Future 17
Development Area Scheme taking effect. 18
Future Development Area Scheme means a scheme for the 19
Future Development Area approved by the Minister under 20
clause 66(5). 21
Local Planning Instrument has the meaning given in the 22
Integrated Planning Act 1997. 23
Ocean Terminal means a facility for the docking of cruise 24
ships and other vessels located within the Future Development 25
Area. 26
Planning Instrument has the meaning given in the Integrated 27
Planning Act 1997. 28
Port Protection Codes means the Surplus Casino Land Port 29
Protection Code and the Future Development Area Port 30
Protection Code. 31
Port Protection Code Notification Date means the latest of the 32
dates on which notification is taken to have been given by the 33
chief executive of the department responsible for the 34
Transport Infrastructure Act 1994 to the owner or owners of 35
the Surplus Casino Land and the Future Development Area 36
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under the Acts Interpretation Act 1954 of the authorisation of 1
the Port Protection Code. 2
Surplus Casino Land means-- 3
(a) all that area of land identified on the plan in Schedule 1 4
as the Surplus Casino Land including-- 5
(i) the land covered by water comprising the Marina 6
Basin and the Marina Entrance Channel; and 7
(ii) the land within any road whether constructed or 8
otherwise; and 9
(b) any future description of the land specified in paragraph 10
(a) consequent upon any resurvey of that land. 11
Surplus Casino Land Port Protection Code means a code for 12
the purpose of minimising the potential impact of the 13
infrastructure and operations of the Townsville Port on the 14
Development of the Surplus Casino Land notified by the chief 15
executive of the department responsible for the Transport 16
Infrastructure Act 1994 as having been authorised to the Local 17
Government, the Townsville Port Authority and the owner or 18
owners of the Surplus Casino Land prior to the Surplus 19
Casino Land Scheme taking effect. 20
Surplus Casino Land Scheme means the scheme for the 21
Surplus Casino Land in Schedule 3. 22
Division 2--Surplus Casino Land 23
52 Purpose of division 2 24
(1) The purpose of division 2 is to specify transitional 25
arrangements which provide for the application of any 26
Development Legislation in force in the Local Government 27
Area in which the Surplus Casino Land is situated to the 28
Development and Use of the Surplus Casino Land. 29
(2) In particular, the provisions provide for-- 30
(a) the future Development and Use of the Surplus Casino 31
Land to be subject to Development Legislation to the 32
extent provided for in this Agreement; and 33
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(b) the registration of the Surplus Casino Land; and 1
(c) the Trustee to be able to transfer the Surplus Casino 2
Land without the consent of the Minister; and 3
(d) the existing Development and Use of the Surplus Casino 4
Land to be a lawful Use; and 5
(e) the effect of the Surplus Casino Land Scheme. 6
53 Proposed Development of Surplus Casino Land 7
The Surplus Casino Land is proposed to be the subject of 8
Development for residential and related Uses as specified in 9
the Surplus Casino Land Scheme. 10
54 Application of Development Legislation to Surplus 11
Casino Land 12
Any Development Legislation in force in the Local 13
Government Area in which the Surplus Casino Land is 14
situated shall apply to the Development and Use of the 15
Surplus Casino Land except to the extent that the operation of 16
the Development Legislation is varied in the manner provided 17
for in this Agreement. 18
55 Registration of the Site and the Surplus Casino Land 19
(1) The purpose of this clause is to create lots for the Site and the 20
Surplus Casino Land. 21
(2) Clause 55(3) applies despite any Development Legislation in 22
force in the Local Government Area in which the Site and the 23
Surplus Casino Land is situated. 24
(3) The State agrees and declares that-- 25
(a) the division of the Site and the Surplus Casino Land into 26
lots generally in accordance with the plan in Schedule 4 27
is approved whether division is effected by one or more 28
plans of subdivision; and 29
(b) a plan or plans of subdivision prepared generally to 30
effect the creation of lots as shown on the plan in 31
Schedule 4 is approved; and 32
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(c) the plans of subdivision may be registered in the 1
appropriate register in the land registry without further 2
approval from a Public Sector Entity. 3
56 Disposal of Surplus Casino Land 4
(1) The Trustee may dispose of the Surplus Casino Land without 5
the prior written consent of the Minister. 6
(2) For the purposes of clause 56(1), dispose includes subdivide, 7
sell, assign, lease, let, sub-lease, sub-let, licence, mortgage, 8
charge or otherwise encumber and also includes agree to 9
dispose and grant consent to the disposal of. 10
57 Existing lawful Use of the Surplus Casino Land 11
(1) The existing Development and Use of the Surplus Casino 12
Land shall be deemed to be a lawful Use and to be lawfully 13
constructed under the Development Legislation in force in the 14
Local Government Area in which the Surplus Casino Land is 15
situated. 16
(2) Any Development Legislation in force in the Local 17
Government Area in which the Surplus Casino Land is 18
situated cannot-- 19
(a) stop the existing lawful Use of the Surplus Casino Land 20
from continuing; or 21
(b) further regulate the existing lawful Use of the Surplus 22
Casino Land; or 23
(c) require the existing lawful Use of the Surplus Casino 24
Land to be changed; or 25
(d) require the existing Work constructed or effected in 26
respect of the lawful Use of the Surplus Casino Land to 27
be altered or removed. 28
(3) The existing Development and Use of the Surplus Casino 29
Land cannot be interfered with or interrupted by any Public 30
Sector Entity or any person on the grounds that the existing 31
Development and Use of the Surplus Casino Land, is contrary 32
to the Development Legislation in force in the Local 33
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Government Area in which the Surplus Casino Land is 1
situated. 2
58 Effect of Surplus Casino Land Scheme 3
(1) The Surplus Casino Land Scheme takes effect under the 4
Integrated Planning Act 1997 in the manner provided for in 5
this clause. 6
(2) The Surplus Casino Land Scheme takes effect as a 7
preliminary approval that-- 8
(a) is for the Development specified in the Surplus Casino 9
Land Scheme; and 10
(b) is mentioned in section 3.1.6 (Preliminary approval may 11
override a local planning instrument) of the Integrated 12
Planning Act 1997; and 13
(c) varies the effect of any applicable Planning Instrument 14
for the Surplus Casino Land. 15
(3) The Surplus Casino Land Scheme-- 16
(a) states that the Development specified in the Surplus 17
Casino Land Scheme is assessable development 18
(requiring code or impact assessment), self-assessable 19
development or exempt development; and 20
(b) identifies codes for the Development specified in the 21
Surplus Casino Land Scheme. 22
(4) To the extent that the Surplus Casino Land Scheme, by doing 23
either or both of the things mentioned in clause 58(3) is 24
different to any applicable Local Planning Instrument, the 25
Surplus Casino Land Scheme prevails. 26
(5) The Surplus Casino Land Port Protection Code takes effect as 27
a code identified by the Surplus Casino Land Scheme as a 28
code for the Development specified in the Surplus Casino 29
Land Scheme under clause 58(3)(b) upon the Surplus Casino 30
Land Scheme taking effect. 31
(6) The Surplus Casino Land Scheme no longer applies to the 32
Development stated in the Surplus Casino Land Scheme when 33
any time limit stated in the Surplus Casino Land Scheme for 34
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completing the Development or as otherwise extended 1
pursuant to the Integrated Planning Act 1997 ends. 2
(7) For the purpose of the Integrated Planning Act 1997-- 3
(a) the Local Government is deemed to be the assessment 4
manager that decided the preliminary approval referred 5
to in sub-clause (2) including the conditions of the 6
preliminary approval; and 7
(b) the preliminary approval referred to in sub-clause (2) is 8
deemed to-- 9
(i) take effect upon the making of this Agreement; and 10
(ii) have a currency period of 10 years from the date 11
the preliminary approval takes effect pursuant to 12
paragraph (b) unless further extended by the Local 13
Government as the assessment manager under the 14
Integrated Planning Act 1997. 15
59 Vesting under Special Lease 16
(1) The State agrees that the Trustee or subsequent lessee shall be 17
entitled to Deeds of Grant in fee simple from the Crown in 18
accordance with the Special Lease subject to due compliance 19
by the Trustee with the terms and conditions thereof. 20
(2) Upon due compliance by the lessee with the terms and 21
conditions of the Special Lease, the State shall vest in the 22
Townsville Port Authority the Marina Entrance Channel and 23
the developed stages of the Marina Basin for subsequent 24
leasing of the Marina Entrance Channel and such stages by 25
the Townsville Port Authority to the Trustee or its nominee in 26
terms of the Townsville Harbour Board Agreement. 27
(3) Every such vesting shall be effected by a deed of grant in trust 28
for Port and Harbour (Marina) Purposes pursuant to section 29
334 of the Land Act 1962. 30
60 Term Leases 31
(1) If-- 32
(a) the plan of subdivision under clause 55 is registered; and 33
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(b) the lessee makes application to the State to subdivide the 1
Special Lease into two new leases comprising one new 2
lease over new lots 637 and 638 and one new lease over 3
new lot 795 and existing lots 676 on Crown Plan 909884 4
and 796 on Crown Plan EP 2296; 5
the State agrees to such subdivision which is deemed to be 6
approved for the purposes of sections 351 and 489(2) of the 7
Land Act subject to any conditions stated by the Minister 8
administering the Land Act under section 351(2) of that Act. 9
(2) If the Special Lease is subdivided, the two new leases 10
mentioned in clause 60(1) shall, for the purposes of section 11
354 of the Land Act-- 12
(a) be on the same conditions as the Special Lease except 13
where the Minister administering the Land Act 14
considers under section 354 of the Land Act it 15
appropriate to either remove redundant conditions or 16
include conditions to permit maintenance of existing 17
rock walls and revetments within the leased area and for 18
works associated with the future development of the Site 19
and the Future Development Area; and 20
(b) have terms equal to the remaining term of the Special 21
Lease. 22
(3) If the Special Lease is subdivided as mentioned in clauses 23
60(1) and (2), and-- 24
(a) the lessee applies under the Land Act for the transfer to 25
the Trustee's nominee of the new lease over new lot 795 26
and existing lots 676 on Crown Plan 909884 and 796 on 27
Crown Plan EP 2296, the State agrees to the transfer 28
which is deemed to be approved for the purposes of 29
section 322 of the Land Act subject to any conditions 30
stated by the Minister administering the Land Act under 31
section 322(4) of that Act; and 32
(b) the lessee applies for the transfer to the Trustee's 33
nominee of leases 703470717 and 601414725, the State 34
agrees to the transfer which is deemed to be approved 35
for the purposes of-- 36
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(i) section 58(1)(b) of the Land Act, subject to any 1
conditions stated by the Minister administering the 2
Land Act under section 58(2) of that Act; and 3
(ii) section 288(1)(b) of the Transport Infrastructure 4
Act, subject to any conditions in respect of the 5
transfer notified by the Minister administering the 6
Transport Infrastructure Act. 7
(4) The conditions stated by the Minister administering the Land 8
Act mentioned in clause 60(3) must include a condition that 9
the Trustee's nominee must be the registered owner of a 10
freehold lot as specified by that Minister in such condition 11
adjoining the Marina Basin. 12
61 Term lease for the Marina Entrance Channel and Marina 13
Basin 14
(1) If the Special Lease is subdivided and the new lease over new 15
lot 795 and existing lots 676 on Crown Plan 909884 and 796 16
on Crown Plan EP 2296 and leases 703470717 and 17
601414725 are transferred as mentioned in clause 60, the 18
Trustee's nominee shall be entitled to apply to the State for the 19
grant of a term lease under the Land Act on similar terms in 20
respect of the Marina Basin and Marina Entrance Channel, 21
if-- 22
(a) the Trustee's nominee is the registered owner of the 23
freehold lot as provided for under clause 60(4); and 24
(b) the Townsville Port Authority with the consent of the 25
lessee of the Marina Basin and Marina Entrance 26
Channel surrenders the tenure of the Marina Basin and 27
Marina Entrance Channel to the State and as a 28
consequence leases 703470717 and 601414725 and any 29
leases granted in respect of the Marina Basin pursuant to 30
clause 59 are cancelled in accordance with section 55 of 31
the Land Act; and 32
(c) if applicable, the new lease over new lot 795 and 33
existing lots 676 on Crown Plan 909884 and 796 on 34
Crown Plan EP 2296 is partially surrendered in respect 35
of lot 676 on CP 909884 or any future description of this 36
lot. 37
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(2) The term lease for which an application may be made under 1
clause 61(1) is the most appropriate tenure and use for the 2
Marina Basin and Marina Entrance Channel including for the 3
purpose of-- 4
(a) section 16 (Deciding appropriate tenure) of the Land 5
Act; and 6
(b) the coastal management plan under the Coastal 7
Protection and Management Act 1995. 8
(3) If approval for the grant of a term lease under the Land Act is 9
sought following the application to lease under clause 61(1)-- 10
(a) section 15(2) (Governor in Council may lease land) of 11
the Land Act is deemed to be satisfied; and 12
(b) a lease may issue without competition to the Trustee's 13
nominee notwithstanding section 121 of the Land Act. 14
(4) If a term lease mentioned under this clause 61 is granted, a 15
condition of the grant of the lease will be that the lessee will 16
be required to enter into a covenant under section 373A of the 17
Land Act to provide for no separate transfer of the lease and 18
the freehold lot mentioned in clause 60(4). 19
Division 3 -- Future Development Area 20
62 Purpose of division 3 21
(1) The purpose of division 3 is to specify the transitional 22
arrangements which provide for the application of any 23
Development Legislation in force in respect of the Future 24
Development Area to the Development and Use of the Future 25
Development Area. 26
(2) In particular, the provisions provide for-- 27
(a) the preparation of an environmental impact statement to 28
address the environmental effects of the Development of 29
the Future Development Area; and 30
(b) the approval by the Minister of the Future Development 31
Area Scheme in respect of the Development and Use of 32
the Future Development Area; and 33
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(c) the Future Development Area Land Platforms to be land 1
from the date of the completion of work to reclaim the 2
Future Development Area Land Platforms; and 3
(d) the approval by the Local Government of Work to 4
reclaim the Future Development Area to facilitate the 5
Development provided for in the Future Development 6
Area Scheme; and 7
(e) the future Development and Use of the Future 8
Development Area to be subject to any Development 9
Legislation in force in respect of the Future 10
Development Area to the extent provided for in this 11
Agreement; and 12
(f) the most appropriate tenure and use of the Future 13
Development Area. 14
63 Proposed Development of Future Development Area 15
The Future Development Area is proposed to be the subject of 16
Development for an Ocean Terminal and residential and 17
related Uses as specified in the Future Development Area 18
Scheme to be approved by the Minister. 19
64 Application of Development Legislation to Future 20
Development Area 21
Any Development Legislation in force in respect of the Future 22
Development Area shall not apply to the Development and 23
Use of the Future Development Area except in the manner 24
provided for in this Agreement. 25
65 Environmental impact statement 26
(1) The Trustee or its nominee shall prepare an environmental 27
impact statement to address the environmental effects of the 28
Development of the Future Development Area. 29
(2) If the Development of the Future Development Area has been 30
declared a significant project under Part 4--Environmental 31
Coordination of the State Development and Public Works 32
Organisation Act 1971 by the Coordinator-General, the 33
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environmental impact statement shall be prepared under Part 1
4--Environmental Coordination of the State Development 2
and Public Works Organisation Act 1971. 3
66 Application for approval of the Future Development Area 4
Scheme 5
(1) The Trustee or its nominee may apply to the Minister for 6
approval of the Future Development Area Scheme after the 7
Coordinator-General has completed a report evaluating the 8
environmental impact statement under Part 4-- 9
Environmental Coordination of the State Development and 10
Public Works Organisation Act 1971 and given a copy of the 11
report to the Trustee or its nominee. 12
(2) The application mentioned in clause 66(1) is made by lodging 13
with the Chief Executive-- 14
(a) a submission comprising of a proposed Future 15
Development Area Scheme and such reports, drawings 16
or other material as is necessary to explain the Future 17
Development Area Scheme; and 18
(b) such other information which may be required by the 19
Chief Executive. 20
(3) The proposed Future Development Area Scheme may for the 21
purpose of the Integrated Planning Act 1997 do either or both 22
of the following for the Development specified in the 23
proposed Future Development Area Scheme-- 24
(a) state that the Development is assessable development 25
(requiring code or impact assessment), self-assessable 26
development or exempt development; and 27
(b) identify codes for the Development. 28
(4) The Minister must-- 29
(a) consider the application; and 30
(b) make a decision in respect of the application in 31
accordance with clause 66(5); and 32
(c) advise the applicant in writing of the decision. 33
(5) The Minister must-- 34
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(a) approve the proposed Future Development Area Scheme 1
in whole or in part unconditionally; or 2
(b) approve the proposed Future Development Area Scheme 3
in whole or in part subject to conditions; or 4
(c) refuse the proposed Future Development Area Scheme 5
in whole or in part; or 6
(d) approve the proposed Future Development Area Scheme 7
with variations; or 8
(e) deal with the proposed Future Development Area 9
Scheme under any combination of clauses 66(5)(a), 10
(5)(b), (5)(c) or (5)(d). 11
(6) The Minister must subject to clause 66(7) decide the 12
application within 20 days of the lodgment of the application. 13
(7) The Minister may extend the decision making period 14
specified in clause 66(6) by not more than 20 days by written 15
notice given to the applicant before the end of the decision 16
making period. 17
67 Future Development Area Land Platforms deemed to be 18
land 19
Upon the completion of Work to reclaim the Future 20
Development Area Land Platforms or parts thereof, the Future 21
Development Area Land Platforms or parts thereof, shall 22
respectively be deemed to be land-- 23
(a) within the Parish of Coonambelah, County of 24
Elphinstone; and 25
(b) within the Local Government Area of the Local 26
Government. 27
68 Work for the Future Development Area 28
(1) The Trustee or its nominee may apply to the Local 29
Government for approval to carry out Work to reclaim the 30
Future Development Area if the Minister approves the Future 31
Development Area Scheme. 32
(2) If an application is made-- 33
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(a) the processing of the application and all matters 1
incidental to the processing (including any appeal made 2
in relation to a decision about the application) must 3
proceed under the Integrated Planning Act 1997 subject 4
to the matters specified in clause 68(3); and 5
(b) any approval issued is taken to be a preliminary 6
approval or a development permit as the case may be 7
under the Integrated Planning Act 1997. 8
(3) For the purpose of the processing of an application specified 9
in clause 68(1) under the Integrated Planning Act 1997-- 10
(a) the Local Government is the assessment manager; and 11
(b) the application is code assessable; and 12
(c) the following are the only referral agencies-- 13
(i) the chief executive of the Townsville Port 14
Authority as a concurrence agency with a referral 15
jurisdiction of port authority functions under the 16
Transport Infrastructure Act 1994, chapter 8, part 17
3; and 18
(ii) the chief executive under the Coastal Protection 19
and Management Act 1995 as a concurrence 20
agency with a referral jurisdiction of coastal 21
management under the Coastal Protection and 22
Management Act 1995, excluding amenity and 23
aesthetic significance or value; and 24
(iii) the Queensland Fire and Rescue Service as an 25
advice agency with a referral jurisdiction of the fire 26
and safety management procedures under the Fire 27
and Rescue Services Act 1990; and 28
(d) the application is deemed to be supported by-- 29
(i) the written consent of the owner of the land to 30
which the application relates to the making of the 31
application; and 32
(ii) any evidence of an allocation of, or an entitlement 33
to, any necessary State resource required under 34
section 3.2.1(5) (Applying for development 35
approval) of the Integrated Planning Act 1997. 36
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(4) To remove doubt it is declared that-- 1
(a) the application mentioned in clause 68(1) can include 2
land outside of the Future Development Area necessary 3
for the carrying out of Work to reclaim the Future 4
Development Area such as revetment walls that form 5
part of the Site; and 6
(b) in respect of the Site, a Development Approval is not 7
required under Part II of the Agreement in respect of 8
Development necessary for the carrying out of Work to 9
reclaim the Future Development Area; and 10
(c) in respect of other land, an approval is not required 11
under any Development Legislation in force in respect 12
of that land in respect of Development necessary for the 13
carrying out of the Work to reclaim the Future 14
Development Area; and 15
(d) in respect of a term lease under the Land Act mentioned 16
in clause 72, the carrying out of Development necessary 17
for the carrying out of the Work to reclaim the Future 18
Development Area is deemed to be within the permitted 19
use of the term lease; and 20
(e) a waterway created as a result of carrying out of Work to 21
reclaim the Future Development Area is a canal for the 22
purpose of the Coastal Protection and Management Act 23
1995 including section 121 (Maintenance of canals) of 24
the Coastal Protection and Management Act 1995. 25
(5) For the purposes of subsection (4)(e), waterway means that 26
part of the Future Development Area which, upon completion 27
of the proposed northern breakwater and each residential land 28
platform (and freehold title being subsequently granted for 29
each land platform), is inundated by tidal water and includes 30
the inundated areas between land platforms, the previous 31
access channel providing access to the Marina Basin and the 32
revetments and breakwaters confining or containing the 33
waterway (surveyed to the outer top edge of the land 34
platforms so that the edge forms the boundary of the abutting 35
freehold land and to the inner top edge of that side of the 36
northern breakwater which faces the access channel). 37
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(6) However, waterway for the purposes of subsection (4)(e) does 1
not include any body of water (including the revetments and 2
breakwaters confining or containing the body of water) which 3
is used, or intended to be used, for the operation of the 4
Townsville Ocean Terminal. 5
69 Effect of Future Development Area Scheme 6
(1) The Future Development Area Scheme takes effect under the 7
Integrated Planning Act 1997 in the manner provided for 8
under this clause. 9
(2) The Future Development Area Scheme takes effect as a 10
preliminary approval that-- 11
(a) is for the Development specified in the Future 12
Development Area Scheme; and 13
(b) is mentioned in section 3.1.6 (Preliminary approval may 14
override a local planning instrument) of the Integrated 15
Planning Act 1997; and 16
(c) varies the effect of any applicable Planning Instrument 17
for the Future Development Area. 18
(3) The Future Development Area Scheme-- 19
(a) states that the Development specified in the Future 20
Development Area Scheme is assessable development 21
(requiring code or impact assessment), self-assessable 22
development or exempt development; and 23
(b) identifies codes for the Development specified in the 24
Future Development Area Scheme. 25
(4) To the extent that the Future Development Area Scheme by 26
doing either or both of the things mentioned in clause 69(3) is 27
different to any applicable Local Planning Instrument, the 28
Future Development Area Scheme prevails. 29
(5) The Future Development Area Port Protection Code takes 30
effect as a code identified by the Future Development Area 31
Scheme as a code for the Development specified in the Future 32
Development Area Scheme under clause 69(3)(b) upon the 33
Future Development Area Scheme taking effect. 34
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(6) The Future Development Area Scheme no longer applies to 1
the Development stated in the Future Development Area 2
Scheme when any time limit stated in the Future Development 3
Area Scheme for completing the Development or as otherwise 4
extended pursuant to the Integrated Planning Act 1997 ends. 5
(7) For the purpose of the Integrated Planning Act 1997-- 6
(a) the Local Government is deemed to be the assessment 7
manager that decided the preliminary approval referred 8
to in sub-clause (2) including the conditions of the 9
preliminary approval; and 10
(b) the preliminary approval referred to in sub-clause (2) is 11
deemed to-- 12
(i) take effect upon the approval of the Future 13
Development Area Scheme; and 14
(ii) have a currency period of 20 years from the date 15
the preliminary approval takes effect pursuant to 16
paragraph (b) unless further extended by the Local 17
Government as the assessment manager under the 18
Integrated Planning Act 1997. 19
(8) To remove doubt it is declared that the Future Development 20
Area Scheme takes effect pursuant to sub-clause (2) even if 21
there is no applicable Local Planning Instrument at the time 22
the Future Development Area Scheme is approved. 23
70 When the Future Development Area Scheme may be 24
changed by the Local Government 25
(1) The Local Government may change the Future Development 26
Area Scheme only where-- 27
(a) the change does not relate to-- 28
(i) the Port Protection Code; or 29
(ii) the entitlement to create the Future Development 30
Area Land Platforms, their approved use rights or 31
their approved layout; and 32
(b) the change is made within 6 months after each 5 year 33
anniversary of the approval of the Future Development 34
Area Scheme; and 35
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(c) necessary to upgrade engineering or environmental 1
aspects of the Future Development Area Scheme to 2
align the Future Development Area Scheme with 3
contemporary development control standards. 4
(2) If the Local Government is satisfied it is necessary to change 5
the Future Development Area Scheme, the Local Government 6
must give written notice to the owner of the land to which the 7
Future Development Area Scheme attaches, which states-- 8
(a) the proposed change and the reasons for the change; and 9
(b) that each person to whom the notice is given may make 10
a written submission to the Local Government about the 11
proposed change; and 12
(c) the time, which must be at least 20 days after the notice 13
is given to the owner, within which the submission must 14
be made. 15
(3) After considering any submissions, the Local Government 16
must give to each person to whom the notice was given-- 17
(a) if the Local Government is not satisfied the change is 18
necessary written notice stating it has decided not to 19
change the Future Development Area Scheme; or 20
(b) if the Local Government is satisfied the change is 21
necessary, written notice stating it has decided to change 22
the Future Development Area Scheme and include 23
details of the changed Future Development Area 24
Scheme. 25
(4) The change takes effect from the day the notice is given to the 26
owner of the land. 27
(5) A person to whom a notice is given under clause 70(3)(b) may 28
appeal against the decision in the notice under section 4.1.31 29
(Appeals for matters arising after approval given (no 30
co-respondents)) of the Integrated Planning Act 1997, as if 31
the decision in the notice was a decision specified in section 32
4.1.31(1)(b) (Appeals for matters arising after approval given 33
(no co-respondents)) of the Integrated Planning Act 1997. 34
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71 Development of the Future Development Area 1
(1) The Work to reclaim the Future Development Area shall be 2
carried out in accordance with the approval contemplated by 3
clause 68. 4
(2) The Development and Use of the Future Development Area to 5
which sub-clause (1) does not apply shall be carried out in 6
accordance with-- 7
(a) any applicable Local Planning Instrument for the Future 8
Development Area; and 9
(b) the Future Development Area Scheme which varies the 10
effect of the applicable Local Planning Instruments. 11
(3) Any Development and Use of the Future Development Area 12
which is not carried out in accordance with clauses 71(1) and 13
(2)(a) shall be carried out in accordance with the Development 14
Legislation. 15
72 Term lease for Future Development Area 16
(1) Following the completion of an environmental impact 17
statement under Part 4--Environmental Co-ordination of the 18
State Development and Public Works Organisation Act 1971, 19
the State may apply to be granted a term lease under the Land 20
Act to facilitate the Development of an Ocean Terminal and 21
residential and related Uses. 22
(2) The term lease for which an application may be made under 23
clause 72(1) is the most appropriate tenure and use for the 24
Future Development Area including for the purpose of-- 25
(a) section 16 (Deciding appropriate tenure) of the Land 26
Act; and 27
(b) the coastal management plan under the Coastal 28
Protection and Management Act 1995. 29
(3) If approval for the grant of a term lease under the Land Act is 30
sought following the application to lease under clause 72(1), 31
section 15(2) (Governor in Council may lease land) of the 32
Land Act is deemed to be satisfied. 33
(4) If the term lease mentioned in clause 72(1) is granted, and is 34
subsequently surrendered by the State from the date of 35
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practical completion of the Ocean Terminal, a term lease to 1
facilitate the Development of residential and related Uses is 2
the most appropriate tenure and use for the part of the Future 3
Development Area which is to be the subject of Development 4
for residential and related Uses, including for the purpose 5
of-- 6
(a) section 16 (Deciding appropriate tenure) of the Land 7
Act; and 8
(b) the coastal management plan under the Coastal 9
Protection and Management Act 1995. 10
(5) The Trustee or its nominee shall, from the date of practical 11
completion of the Ocean Terminal, be entitled to apply to the 12
State to the exclusion of any other person for the grant of a 13
term lease under the Land Act in the form specified in clause 14
72(4). 15
(6) If approval for the grant of a term lease under the Land Act is 16
sought following the application to lease under clause 72(5)-- 17
(a) section 15(2) (Governor in Council may lease land) of 18
the Land Act is deemed to be satisfied; and 19
(b) a lease may issue without competition to the Trustee or 20
its nominee notwithstanding section 121 of the Land 21
Act; and 22
(c) for the purposes of this term lease, section 129 of the 23
Land Act is satisfied. 24
(7) The term lease mentioned in clause 72(5) shall, in addition to 25
other requirements-- 26
(a) apply to that part of the Future Development Area which 27
is to be the subject of Development for residential and 28
related Uses as specified in the Future Development 29
Area Scheme; and 30
(b) authorise to facilitate the Development of residential 31
and related Uses; and 32
(c) include conditions of lease provided for under the Land 33
Act, including that a request must be made to the 34
Governor in Council to issue to the lessee an estate in 35
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fee simple over the Future Development Area Land 1
Platforms upon-- 2
(i) performance of and compliance with all of the 3
conditions of the lease to the satisfaction of the 4
Minister administering the Land Act; and 5
(ii) payment by the lessee to the said Minister of the 6
determined purchase price and any other relevant 7
fees; and 8
(iii) partial surrender to the State of the leased land 9
comprised in the Future Development Area Land 10
Platforms. 11
73 Land use plan for the Ocean Terminal 12
(1) The Minister administering the Transport Infrastructure Act 13
1994 may from the date of practical completion of the Ocean 14
Terminal, direct a port authority to prepare a land use plan or 15
an amendment of a land use plan which includes the Ocean 16
Terminal and related land as strategic port land pursuant to 17
section 285(3) (Land use plans) of the Transport 18
Infrastructure Act 1994. 19
(2) The State agrees and declares that-- 20
(a) section 285C (Consultation on statement of proposal or 21
draft plan) of the Transport Infrastructure Act 1994 does 22
not apply to a land use plan or an amendment of a land 23
use plan prepared pursuant to clause 73(1); and 24
(b) the Minister administering the Transport Infrastructure 25
Act 1994 is not required to be satisfied of the matters 26
specified in section 286(1)(a)(c) of the Transport 27
Infrastructure Act 1994 when considering whether to 28
approve a land use plan or amendment of a land use plan 29
prepared pursuant to clause 73(1). 30
(3) Upon notification of approval of the land use plan under 31
clause 73(1) in the government gazette, all applicable 32
Development Legislation will apply to the strategic port land. 33
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74 Review of Decisions in respect of the Future 1
Development Area 2
(1) A decision made in relation to the approval of the Future 3
Development Area Scheme shall not be subject to review 4
under the Review Act or otherwise. 5
(2) In particular, a decision under clause 66(5) in relation to the 6
approval of the Future Development Area Scheme-- 7
(a) is final and conclusive; and 8
(b) cannot be challenged, appealed against, reviewed, 9
quashed, set-aside, or called into question in any other 10
way, under the Review Act or otherwise (whether by the 11
Supreme Court, another court, a tribunal, an authority or 12
a person); and 13
(c) is not subject to any writ or order of the Supreme Court, 14
another court, a tribunal, an authority or a person on any 15
ground. 16
Examples of writs and orders to which the sub-clause 17
applies-- 18
Example 1-- 19
Writs of mandamus, prohibition and certiorari. 20
Example 2-- 21
Certiorari orders, prohibition orders, prerogative 22
orders, prerogative injunctions, and statutory orders of 23
review, within the meaning of the Review Act. 24
Example 3-- 25
Declaratory and injunctive orders. 26
(3) Without limiting clause 74(2), the Review Act does not apply 27
to the following matters-- 28
(a) conduct engaged in for the purpose of making a decision 29
which has the meaning given by section 8 (Conduct 30
engaged in for making decision--preparatory acts) of 31
the Review Act; and 32
(b) other conduct that relates to the making of a decision; 33
and 34
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(c) the making of a decision or the failure to make a 1
decision which has the meaning given by section 5 2
(Meaning of making of a decision and failure to make a 3
decision) of the Review Act; and 4
(d) a decision; 5
under this Agreement, or otherwise, in relation to the approval 6
of the Future Development Area Scheme. 7
(4) In particular, but without limiting clause 74(3), the Supreme 8
Court does not have jurisdiction to hear and determine 9
applications made to it under Part 3, 4 or 5 of the Review Act 10
in relation to matters mentioned in clause 74(3). 11
75 Restricted Area 12
Clause 44(1) does not apply to the Development of the Future 13
Development Area under Division 3 of Part IX of this 14
Agreement. 15
Division 4--Port Protection Code 16
76 Limitations on changes to the Port Protection Code 17
(1) A decision in respect of the Surplus Casino Land Scheme and 18
the Future Development Area Scheme in relation to a request 19
under section 3.5.24 (Request to change development 20
approval (other than a change of a condition)) and 3.5.33 21
(Request to change or cancel condition) of the Integrated 22
Planning Act 1997 may not reduce the measures in the Port 23
Protection Code which minimise the potential impact of the 24
infrastructure and operations of the Townsville Port on the 25
Development of the Surplus Casino Land and the Future 26
Development Area. 27
(2) For the purposes of processing a request specified in clause 28
76(1) under the Integrated Planning Act 1997 in respect of the 29
Surplus Casino Land Scheme or the Future Development Area 30
Scheme, the chief executive under the Transport 31
Infrastructure Act 1994 is deemed to be the concurrence 32
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agency which required the Port Protection Code to be 1
identified-- 2
(a) by the Surplus Casino Land Scheme as a code for the 3
Development specified in the Surplus Casino Land 4
Scheme; and 5
(b) by the Future Development Area Scheme as a code for 6
the Development specified in the Future Development 7
Area Scheme. 8
(3) In addition to the procedures under the Integrated Planning 9
Act 1997 referred to in clause 76(1), the chief executive of the 10
department responsible for the Transport Infrastructure Act 11
1994 may also change the Port Protection Code by 12
notification to the Local Government, the Townsville Port 13
Authority and the Owners of the land the subject of the 14
relevant Port Protection Code, if-- 15
(a) a notice of the proposed change and the reasons for the 16
change have been given by-- 17
(i) the chief executive of the department responsible 18
for the Transport Infrastructure Act 1994 to-- 19
(A) each Owner of land the subject of the 20
relevant Port Protection Code; and 21
(B) the Local Government; and 22
(C) the Townsville Port Authority; or 23
(ii) an Owner of land the subject of the relevant Port 24
Protection Code to-- 25
(A) the chief executive of the department 26
responsible for the Transport Infrastructure 27
Act 1994; and 28
(B) each other Owner of land the subject of the 29
relevant Port Protection Code; and 30
(C) the Local Government; and 31
(D) the Townsville Port Authority; and 32
(b) the chief executive of the department responsible for the 33
Transport Infrastructure Act 1994 consents to the 34
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proposed change to the Port Protection Code, if the 1
change is proposed by an Owner; and 2
(c) each Owner who is required to be given a notice of a 3
proposed change to the Port Protection Code under 4
clause 76(3)(a) has consented to the proposed change, 5
except that-- 6
(i) an Owner must not unreasonably withhold its 7
consent; and 8
(ii) if an Owner has not given notice to the chief 9
executive of the department responsible for the 10
Transport Infrastructure Act 1994 in response to a 11
notice of a proposed change given by another party 12
under clause 76(3)(a) of either the Owner's consent 13
or the Owner's refusal on specified reasonable 14
grounds within 20 days, the Owner is taken to have 15
consented to the proposed change. 16
(4) For the purpose of clause 76(3), Owner-- 17
(a) means the Trustee or its nominee, as applicable; and 18
(b) in addition, has the same meaning as owner in section 19
3.4.4(5) (Public notice of applications to be given) of the 20
Integrated Planning Act 1997, as if all references to the 21
terms adjoining and adjoining the land the subject of the 22
application had been omitted from that definition. 23
IN WITNESS WHEREOF the parties have executed this Agreement the 24
day and year hereinbefore written. 25
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SCHEDULE 1 1
LAND PLAN 2
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SCHEDULE 2 1
WORK AND CONTRIBUTIONS IN RESPECT OF THE 2
BREAKWATER ISLAND CASINO-HOTEL COMPLEX 3
(Clauses 18 and 19) 4
5
Entity Requirement Amount
Townsville Port (1) Use of Land and $500,000
Authority Buildings on Yacht
Club site
(2) Purchase of existing $250,000 plus annual
reclamation payments of $59,856
over fifteen (15) years
Townsville City (1) Water Supply $88,000
Council Augmentation
(2) Road Works and At Manager's Cost
Traffic
(3) Roads Maintenance $30,000
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SCHEDULE 3 SURPLUS CASINO LAND 1
SCHEME 2
PART A: EXPLANATORY PROVISIONS 3
1. SHORT TITLE 4
2. APPLICATION 5
3. RELATIONSHIP WITH THE INTEGRATED PLANNING ACT 6
1997 7
PART B: CONDITIONS OF SCL SCHEME 8
4. CONDITIONS 9
PART C--THE SCL SCHEME CODE 10
5. GENERAL 11
6. COMPLIANCE WITH THE SCL CODE 12
7. OVERALL OUTCOMES OF SCL SCHEME AREA 13
8. DEVELOPMENT SECTOR OUTCOMES 14
PART D--ASSESSMENT CATEGORIES FOR SECTORS 15
9. ASSESSMENT CATEGORIES 16
PART E--MANDATORY REQUIREMENTS OF THE SCL 17
SCHEME CODE 18
10. DEFINITIONS 19
11. MAPS 20
Map 1: SCL Scheme Area 21
Map 2: Area Sectors 22
Map 3: Building Heights 23
Map 4: Plot Ratio 24
Map 5: Greenspace and Pathways 25
Map 6: Reconfiguration Concept 26
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PART A: EXPLANATORY PROVISIONS 1
1 SHORT TITLE 2
1.1 This Surplus Casino Land Scheme may be cited as the SCL 3
Scheme. 4
2 APPLICATION 5
2.1 This SCL Scheme applies to that part of the Local 6
Government Area identified as the SCL Scheme Area in Map 7
1: SCL Scheme Area. 8
3 RELATIONSHIP WITH THE INTEGRATED PLANNING 9
ACT 1997 10
3.1 This SCL Scheme takes effect under the Integrated Planning 11
Act 1997 in accordance with Clause 58 of the Formal 12
Agreement ratified in the Breakwater Island Casino 13
Agreement Act 1984. 14
3.2 This SCL Scheme takes effect as a preliminary approval under 15
s.3.1.5 of the Integrated Planning Act 1997 for a mixed 16
residential and marina development. Pursuant to s.3.1.6 17
(Preliminary Approval may override a local planning 18
instrument) of the Integrated Planning Act 1997, this 19
Preliminary Approval-- 20
3.2.1 approves a development being a material change of 21
use for the purposes specified in this SCL Scheme, a 22
reconfiguration of a lot, building work and operational 23
work that varies City Plan 2005 for the SCL Scheme 24
Area by stating-- 25
3.2.1.1 whether development is assessable, self 26
assessable or exempt; and 27
3.2.1.2 assessment levels for assessable 28
development that override the Tables of 29
Assessment in Part 4.21, Table 4.18A and 30
4.18B of City Plan 2005; and 31
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3.2.1.3 adopting a specific SCL Scheme Code 1
applying to all development within the SCL 2
Scheme Area; and 3
3.2.1.4 overriding any code in the City Plan 2005 4
applicable to development within the SCL 5
Scheme Area, to the extent of any 6
inconsistency with the SCL Scheme Code; 7
and 8
3.2.2 approves a Reconfiguration of the SCL Scheme Area 9
generally in accordance with Map 6: 10
Reconfiguration Concept only to the extent of 11
identifying the individual development areas located 12
on the plan of subdivision. 13
3.3 For clarity, any applicable code or policy in City Plan 2005, 14
not inconsistent with this SCL Scheme Code, including any 15
headworks contributions or infrastructure charges, remain 16
applicable to development in the SCL Scheme Area to the 17
same extent as other development within the Local 18
Government Area. 19
3.4 For the purpose of s.3.5.21 of the Integrated Planning Act 20
1997, the currency period for the Preliminary Approval within 21
this SCL Scheme is ten (10) years. Nothing prevents any 22
extension of this currency period of this SCL Scheme if 23
approved by Council pursuant to the Integrated Planning Act 24
1997. 25
PART B: CONDITIONS OF SCL SCHEME 26
4 CONDITIONS 27
4.1 In accordance with Clause 3.1.5(1) of the Integrated Planning 28
Act 1997, this Preliminary Approval is subject to the 29
following conditions-- 30
4.1.1 Prior to any application for a development permit for a 31
material change of use or commencement of any new 32
use of land within the SCL Scheme Area-- 33
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4.1.1.1 a development permit authorising a 1
reconfiguration of the SCL Scheme Area 2
must be obtained; and 3
4.1.1.2 compliance with all approved conditions of 4
that development permit for reconfiguration 5
of a lot and registration of the plan of survey 6
must occur. 7
4.1.2 As part of the application for a development permit for 8
the reconfiguration required under clause 4.1.1 an 9
applicant must evidence Council's approval of a master 10
plan of Areas A, B and C (as identified on Map 2), 11
identifying-- 12
4.1.2.1 the applicant's preferred option (if any) for 13
the relocation within Area A, B or C (as the 14
case may be) of the-- 15
4.1.2.1.1 Sailing Club; and 16
4.1.2.1.2 the Ergon Substation; and 17
4.1.2.2 how pedestrian access to The Strand from 18
the east can be maintained. 19
4.1.3 While the existing commercial fishing berths within 20
the Marina Basin directly adjacent to Area H (as 21
identified on Map 2: Area Sectors) remain operative, 22
reasonable public access to the pontoons and 23
associated facilities must be provided at all times. 24
Prior to the removal of the commercial fishing berths 25
and the public access thereto, an applicant must 26
provide Council with evidence of the alternative 27
relocated marina arrangements for the commercial 28
fishing berths. 29
4.1.4 All lots created within the SCL Scheme Area must be 30
community titled lots under the Body Corporate and 31
Community Management Act 1997 and the Land Title 32
Act 1994, except-- 33
4.1.4.1 any area the subject of a lease, permit or 34
licence under the Land Act 1994 or which 35
otherwise comprises Crown land; or 36
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4.1.4.2 any lot upon which the Sailing Club use is 1
effected; or 2
4.1.4.3 any area under or part of which is under the 3
high water mark, dedicated as road, 4
parkland or reserve for public use, benefit or 5
utility or any area owned by the provider of 6
utility services; or 7
4.1.4.4 any area comprised in land vested in the 8
Townsville Port Authority by Deed of grant 9
in trust. 10
4.1.5 In any development application for a Site an applicant 11
must-- 12
4.1.5.1 provide evidence of satisfaction of any 13
applicable State Code, incorporating the 14
Design Provisions which applies to that Site; 15
or 16
4.1.5.2 in the event no applicable State Code exists, 17
include in its supporting information, a draft 18
code for the Design Provisions prepared to 19
the satisfaction of the State. 20
4.1.6 The community management statement for the scheme 21
containing the lots comprised in the Site or the 22
principal scheme, where the Site is or is proposed to 23
comprise scheme land for a subsidiary community 24
titles scheme must, when endorsed by the local 25
government-- 26
4.1.6.1 incorporate an Architectural and Landscape 27
Code that reflects and applies the Code 28
prepared under clause 4.1.5 for the site; and 29
4.1.6.2 contain provisions that require local 30
government consent to any change to the 31
Architectural and Landscaping Code. 32
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PART C -- THE SCL SCHEME CODE 1
5 GENERAL 2
5.1 This SCL Scheme Code is comprised of-- 3
5.1.1 overall outcomes for the SCL Scheme Area; and 4
5.1.2 specific outcomes for each Sector within the SCL 5
Scheme Area; and 6
5.1.3 Tables of Assessments; and 7
5.1.4 other specific outcomes and both mandatory solutions 8
and probable solutions for various types of 9
development. 10
6 COMPLIANCE WITH THE SCL CODE 11
6.1 Development that is-- 12
6.1.1 consistent with the overall outcomes for the SCL Area; 13
and 14
6.1.2 consistent with the specific outcomes for the Sector in 15
which the development is located; and 16
6.1.3 complies with the Applicable Codes as identified 17
within the Table of Assessment for the Sector in which 18
the development is located; 19
complies with this SCL Scheme Code. 20
6.2 The following defined uses as defined by City Plan 2005 are 21
considered inconsistent with the SCL Scheme Area and, in 22
particular, are considered inconsistent with the overall 23
outcomes for the SCL Scheme Area and the specific outcomes 24
for the Sectors-- 25
Agriculture, Animal Husbandry, Aquaculture, Car 26
Washing Station, Caravan Park, Car Park, Commercial 27
Animal Keeping, Community Residence, Educational 28
Establishment, Extractive Industry, Funeral Directors 29
Premises, Garden Centre, General Industry, Hospital, 30
Institutional Residence, Intensive Animal Husbandry, 31
Landscape Supplies, Motel, Outdoor Recreation, 32
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Retirement Village, Roadside Stall, Rural Services 1
Industry, Sales or Hire Yard, Service Industry, Service 2
Station, Showroom, Stable, Storage or Contractor's Yard, 3
Transport Depot, Vehicle Repair Premises, Warehouse. 4
7 OVERALL OUTCOMES OF SCL SCHEME AREA 5
Development is to be consistent with the overall outcomes for the 6
SCL Scheme Area as follows-- 7
7.1 creates a vital, mixed use and highly urbane environment 8
focused on waterfront access and activities; 9
7.2 development respects the highly visible nature of the SCL 10
Scheme Area and provides a built form that interacts 11
positively with-- 12
7.2.1 existing development in the locality, particularly the 13
Breakwater Island Casino-Hotel Complex and the 14
Entertainment Centre, as the pre-eminent 15
casino/gaming entertainment facility in Townsville; 16
and 17
7.2.2 The Strand and Anzac Park public open space; and 18
7.2.3 the Marina. 19
7.3 encourages residential development design within the SCL 20
Scheme Area that protects from the impacts on amenity from 21
the Port of Townsville by satisfaction of any applicable State 22
Code (or draft Code) taking into account the Design 23
Provisions; 24
7.4 establishes a scale of development which respects the planned 25
intent of development overall within this SCL Scheme and the 26
character of the Marina waterfront; 27
7.5 provide for a comprehensive development that includes the 28
following elements-- 29
7.5.1 high quality residential buildings in a variety of built 30
forms and densities; 31
7.5.2 public open spaces, landscaping and pedestrian 32
circulation; 33
7.5.3 access to waterfront; 34
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7.5.4 facilities to support the existing marina; 1
7.5.5 lot sizes that incorporate landscaping and visual 2
buffers for individual uses; 3
7.6 development must provide all necessary residential, 4
commercial and visitor carparking required and not rely upon 5
any on-street or public carparking areas. 6
8 DEVELOPMENT SECTOR OUTCOMES 7
The SCL Scheme Area has been divided into three (3) Sectors 8
(Marina, Dwelling House and Multiple Dwelling) so each can 9
carefully be developed with specific requirements to protect the 10
overall amenity of the SCL Scheme Area. 11
Within each Sector, further identification of areas (as indicated 12
with alphabetical markers on Map 2: Area Sectors) has also 13
occurred where particular development outcomes for that area 14
within a sector are sought to be achieved through this SCL Scheme. 15
SO1 Development is to be consistent with the specific outcomes 16
for the Sector in which it is located in Map 2: Area Sectors. 17
The Specific Outcomes for each Sector within the SCL 18
Scheme Area are as follows-- 19
8.1 Marina Sector 20
8.1.1 this Sector primarily accommodates the facilities 21
associated with the operation of the Marina, including 22
car parking for the Marina, administration facilities, 23
ablutions and marine fuel loading facilities; 24
8.1.2 the existing administration facilities are to be relocated 25
to a new commercial premises/office together with a 26
small scale retail outlet; 27
8.1.3 a boat chandlery business serving the equipment, 28
refuelling and providoring requirements of craft using 29
the marina is to be developed and may be together with 30
a small café/restaurant. This facility may also 31
incorporate a small shop for the convenience of 32
visiting craft, local apartment residents and to enhance 33
the business viability of the Chandlery; 34
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8.1.4 a boat building or repair facility is not envisaged 1
within this Sector; 2
8.1.5 public access to the Marina Basin and future western 3
sea wall will be paramount. 4
8.2 Multiple Dwelling Sector 5
8.2.1 this Sector primarily locates a range of low- to 6
high-density multiple dwelling residential uses with 7
active ground levels to encourage residents and visitors 8
to utilise ground level water frontage areas; 9
8.2.2 all residential uses must provide basement resident and 10
visitor car parking, without relaxation; 11
8.2.3 mixed use ground floor retail, restaurants and 12
commercial facilities are encouraged to develop an 13
active, highly pedestrian orientated waterside path 14
public area; 15
8.2.4 a safe, interactive outdoor environment for residents is 16
promoted by passive surveillance, lighting and design 17
elements; 18
8.2.5 a residential density not exceeding that indicated in the 19
SCL Scheme Area Code is expected with actual 20
residential density being less than envisaged in Map 21
4: Plot Ratio, after full consideration is given to 22
location, siting, design and climatic aspects of 23
individual developments; 24
8.2.6 the existing character and economic benefit of the 25
Casino Complex and Entertainment Centre to the 26
Local Government Area is to be respected; 27
8.2.7 Area A, B and C are intended to create a low height 28
active vibrant entry streetscape into the internal 29
Mariner's Parade to incorporate the continuance of 30
Strand development and public pathways into the SCL 31
Scheme Area; 32
8.2.8 Area D is to create a vibrant entry streetscape 33
establishing as a distinctive, attractive and interesting 34
residential development creating a visual consistency 35
between the surrounding residential development on 36
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Melton Hill and the Strand to the Multiple Dwelling 1
Sector land; 2
8.2.9 Area E and F should enhance the existing internal 3
Mariners Parade streetscape and provide public access 4
to-- 5
(i) the future Western Sea Wall; and 6
(ii) the Marina Basin; 7
as envisaged by Map 5: Greenspace and Pathways; 8
8.2.10 Area K is to be an `iconic' slim building of a 9
maximum height as allowed by Map 3: Building 10
Heights as an entry statement into the Marina Basin. 11
8.3 Dwelling House Sector 12
8.3.1 accommodates low-density individual Dwelling 13
Houses; 14
8.3.2 most lots will have access to separate berths within the 15
Marina; 16
8.3.3 Area G is restricted in height to maintain the visual 17
outlook from the Mariner's North development, and 18
envisage larger traditional size allotments; 19
8.3.4 Area H envisages reconfiguration into small lots for 20
terrace style Dwelling Houses where some party walls 21
are encouraged; 22
8.3.5 each Dwelling House is to be set in a landscaped 23
private allotment and includes car accommodation on 24
site; 25
8.3.6 siting and design of each Dwelling House respects the 26
design, privacy and amenity of its neighbours and 27
takes maximum advantage of its water frontage or 28
marina outlook; 29
8.3.7 public access to the waterfront in front of this Sector is 30
not encouraged. 31
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PART D--ASSESSMENT CATEGORIES FOR SECTORS 1
9 ASSESSMENT CATEGORIES 2
9.1 The Assessment Categories are identified for development in 3
each Sector in Column 1 of Tables 1 to 3 as follows-- 4
9.1.1 Tables 1A3A--Making a Material Change of Use 5
listed in Column 2; and 6
9.1.2 Tables 1B3B--Other Development listed in Column 7
2, including-- 8
9.1.2.1 carrying out building works not associated 9
with material change of use; and 10
9.1.2.2 carrying out operational works for 11
excavation or filling; and 12
9.1.2.3 reconfiguring a lot; and 13
9.1.2.4 carrying out operational works for 14
reconfiguring a lot. 15
9.2 The relevant assessment criteria in each Sector are referred to 16
in Column 3 of Tables 1A and 1B 3A and 3B. 17
9.2.1 For self assessable development, solutions in 18
Applicable Codes should be taken as mandatory 19
solutions for that development. Self assessable 20
development that does not comply with any other 21
probable solution identified in a City Plan 2005 Code 22
listed in Column 3 is taken to require code assessment. 23
However, where self assessable development does not 24
comply with the SCL Scheme Area Code: Schedule A 25
it requires impact assessment. 26
9.2.2 For code assessable development, solutions in the SCL 27
Scheme Area Code Schedule A are mandatory 28
solutions for that development. Any probable 29
solutions identified in brackets for codes contained 30
within City Plan 2005 and identified within Column 3 31
are mandatory. Code assessable development that 32
does not comply with the SCL Scheme Area Code and 33
those identified mandatory solutions for City Plan 34
2005 Codes requires impact assessment. 35
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TABLE 1A 1
ASSESSMENT CATEGORIES AND APPLICABLE CODES FOR 2
THE MARINA SECTOR--MAKING A MATERIAL CHANGE OF 3
USE 4
COLUMN 1 COLUMN 2 COLUMN 3
DEFINED USE APPLICABLE CODES1
Parkland
EXEMPT Local Utility
All solutions in identified codes are mandatory for self assessable
uses. Self assessable uses require impact assessment if the
applicable solutions are not complied with.
All self assessable uses:
SELF SCL Scheme Area Code
ASSESSMENT District Code No.1 (only S06 to
S020)
Landscaping Code
Parking and Access Code
works Code
AND
Marina Facilities Minor Centres Code
Minor or Temporary Telecommunications Facility
Telecommunications Facility Code (section 4)
Office (Where only minor Minor Centres Code
building work is required)
Shop (Where only minor Minor Centres Codes
building work is required)
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The mandatory solutions in the SCL Scheme Area
Code--Schedule A and any probable solutions for specific
outcomes identified in brackets for any Code contained in City
Plan 2005 are mandatory for code assessable uses. Code assessable
uses require impact assessment if the mandatory solutions are not
complied with.
All code assessable uses:
SCL Scheme Area Code
District Code No.1 (only S06 to
S020)
Landscaping Code
Parking and Access Code
CODE Works Code
ASSESSMENT AND
Caretaker's Residence Caretaker's Residence Code
Office (where building work is Minor Centres Code
required)
Restaurant (where building Minor Centres Code
works is required)
Shop (where building work is Minor Centres Code
required)
1 Codes listed are as identified in City Plan 2005 except for the SCL Scheme Area
Code in this SCL Scheme
IMPACT All other uses except for a
road; and
ASSESSMENT Any use specified in this Table
1A that does not comply with
the SCL Scheme Area
Code--Schedule A.
1
2
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TABLE 1B 1
ASSESSMENT CATEGORIES AND APPLICABLE CODES FOR 2
MARINA SECTOR -- OTHER DEVELOPMENT 3
COLUMN 1 COLUMN 2 COLUMN 3
TYPE OF DEVELOPMENT APPLICABLE CODES
Carrying out building work
being demolition or removal of
a building
EXEMPT
Any other development not
listed below
All solutions in identified codes are mandatory for self assessable
uses. Self assessable uses require code assessment if the applicable
solutions are not complied with.
Operational works being Works Code (section 2, PS3. only)
SELF excavating or filling premises
ASSESSMENT by >0.3m and <1.0m in depth
(where more than 1.5m from a
boundary) or >10m3 and
<50m3 in volume
Carrying out building work SCL Scheme Code--Schedule A
other than demolition or
removal, where not associated
with a material change of use
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CODE Operational works being Works Code
ASSESSMENT excavatinginor filling >50m3 in
premises
by >1.0m depth or
volume or excavating or
filling by >0.3m in depth
within 1.5m of a boundary
Operational work for Works Code
reconfiguring a lot where the
reconfiguring is assessable
Reconfiguring Lots Code
Reconfiguring a lot
1
2
TABLE 2A 3
ASSESSMENT CATEGORIES AND APPLICABLE CODES FOR 4
the DWELLING HOUSE SECTOR--MAKING A MATERIAL 5
CHANGE OF USE 6
COLUMN 1 COLUMN 2 COLUMN 3
DEFINED USE APPLICABLE CODES1
Parkland
EXEMPT Local Utility
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All solutions in identified codes are mandatory for self assessable
uses. Self assessable uses require impact assessment if the
applicable solutions are not complied with.
All self assessable uses:
SELF SCL Scheme Area Code
ASSESSMENT District Code No.1 (only S06 to
S020)
AND
Display Home Detached House Code
Dwelling House Detached House Code
Home Based Business Home Based Business Code
Minor or Temporary Telecommunications Facility
Telecommunications Facility Code (section 4)
The mandatory solutions in the SCL Scheme Area
Code--Schedule A and any probable solutions for specific
outcomes identified in brackets for any Code contained in City
Plan 2005 are mandatory for code assessable uses. Code assessable
uses require impact assessment if the mandatory solutions are not
complied with.
All code assessable uses:
SCL Scheme Area Code
District Code No.1 (only S06 to
S020)
CODE
ASSESSMENT Landscaping Code
Parking and Access Code
Works Code
AND
Caretaker's Residence Caretaker's Residence Code
IMPACT All other uses except for a road Minor Centres Code
ASSESSMENT
Any use specified within this
Table 2A that does not comply
with the SCL Scheme Area
Code
1 Codes listed are as identified in City Plan 2005 except for the SCL Scheme Area
Code in this SCL Scheme
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TABLE 2B 1
ASSESSMENT CATEGORIES AND APPLICABLE CODES FOR 2
DWELLING HOUSE SECTOR -- OTHER DEVELOPMENT 3
COLUMN 1 COLUMN 2 COLUMN 3
TYPE OF DEVELOPMENT APPLICABLE CODES
Carrying out building work
being demolition or removal of
a building
EXEMPT
Any other development not
listed below
All solutions in identified codes are mandatory for self assessable
uses. Self assessable uses require code assessment if the applicable
solutions are not complied with.
Operational works being Works Code (section 2, PS3.1
SELF excavating or filling premises only)
ASSESSMENT by >0.3m and <1.0m in depth
(where more than 1.5m from a
boundary) or >10m3 and
<50m3 in volume
Carrying out building work
other than demolition or SCL Scheme Code--Schedule A
removal, where not associated
with a material change of use
Operational works being Works Code
excavating or filling premises
by >1.0m in depth or >50m3
in volume or excavating or
filling by >0.3m in depth
within 1.5m of a boundary
CODE Operational work for Works Code
ASSESSMENT reconfiguring a lot where the
reconfiguring is assessable
Reconfiguring Lots Code
Reconfiguring a lot
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MULTIPLE DWELLING SECTOR 1
2
TABLE 3A 3
ASSESSMENT CATEGORIES AND APPLICABLE CODES FOR 4
MULTIPLE DWELLING SECTOR--MATERIAL CHANGE OF USE 5
COLUMN 1 COLUMN 2 COLUMN 3
DEFINED USE APPLICABLE CODES1
Parkland
EXEMPT
Local Utility
Temporary Car Park (only on
Areas I, J, K, L, M)
All solutions in identified codes are mandatory for self assessable
uses. Self assessable uses require impact assessment if the
applicable solutions are not complied with.
All self assessable uses:
SCL Scheme Area Code
District Code No.1 (only S06 to
S020)
SELF
ASSESSMENT AND
Display Home (except for Area Detached House Code
A)
Dwelling House (except for Detached House Code
Area A)
Home Based Business (except Home Based Business Code
for Area A)
Minor or Temporary Telecommunications Facility
Telecommunications Facility Code (section 4)
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The mandatory solutions in the SCL Scheme Area
Code--Schedule A and any probable solutions for specific
outcomes identified in brackets for any Code contained in City
Plan 2005 are mandatory for code assessable uses. Code
assessable uses require impact assessment if the mandatory
solutions are not complied with.
All code assessable uses:
SCL Scheme Area Code
District Code No.1 (only S06 to
S020)
CODE
Landscaping Code
ASSESSMENT
Parking and Access Code
Works Code
AND
Catering Shop (except Area A) Caretaker's Residence Code
Child Care Centre (except Area Child Care Centre Code
A)
Dual Occupancy (except Area Dual Occupancy Code
A)
Indoor Recreation (only on Minor Centres Code
Areas A, B or C)
Major Utility (except Area A) Minor Centres Code
Multiple Dwellings (except Multiple Dwelling Code
Area A)
Shop (where under 600sqm Minor Centres Code
gross floor area)
Restaurant Minor Centres Code
All other uses except for a road;
and
IMPACT Any use identified in this Table
ASSESSMENT 3A that does not comply with
the SCL Scheme Area Code --
Schedule A
1 Codes listed are as identified in City Plan 2005 except for the SCL Scheme Area
Code in this SCL Scheme
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TABLE 3B 1
ASSESSMENT CATEGORIES AND APPLICABLE CODES FOR 2
MULTIPLE DWELLING SECTOR -- OTHER DEVELOPMENT 3
COLUMN 1 COLUMN 2 COLUMN 3
TYPE OF DEVELOPMENT APPLICABLE CODES1
Carrying out building work
being demolition or removal of
a building
EXEMPT
Any other development not
listed below
All solutions in identified codes are mandatory for self assessable
uses. Self assessable uses require code assessment if the
applicable solutions are not complied with.
Operational works being Works Code (section 2, PS3.1
SELF excavating or filling premises only)
ASSESSMENT by >0.3m and <1.0m in depth
(where more than 1.5m from
a boundary) or >10m3 and
<50m3 in volume
Carrying out building work
other than demolition or SCL Scheme Code--Schedule A
removal, where not
associated with a material
change of use
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Operational works being Works Code
excavating or filling premises
by >1.0m in depth or >50m3 in
volume or excavating or
filling by >0.3m in depth
within 1.5m of a boundary
CODE Operational work for Works Code
ASSESSMENT reconfiguring a lot where the
reconfiguring is assessable
Reconfiguring Lots Code
Reconfiguring a lot
1 Codes listed are as identified in City Plan 2005 except for the SCL Scheme Area
Code in this SCL Scheme
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PART E--MANDATORY REQUIREMENTS OF THE SCL 1
SCHEME CODE 2
S02 All development within this SCL Scheme Area must comply with the 3
SCL Scheme Area Code Schedule A 4
SCL Scheme Area Code Schedule A: 5
Specific Outcomes Mandatory Solutions
Building Heights
SO3 The height of buildings or MS3 The building height or
structures is consistent with structure does not exceed
the desired character and the maximum number of
amenity of the SCL storeys indicated in Map
Scheme Area 3--Building Heights1
excluding features
providing architectural
interest and which do not
create additional gross
floor area such as clock
towers, observation
platforms, flagpoles and
shade structures
Plot Ratio
SO4 Residential development is MS4 The maximum plot ratio
of a density consistent with for residential development
the character intended for other than Dwelling
the SCL Scheme Area and Houses must not exceed
provides for a high level of that identified in Map
residential amenity 4--Plot Ratios
Open Space
SO5 Development provides MS5 Pedestrian, bicycle and
efficient public open space, public open space to
pedestrian/bicycle pathway achieve the intent of public
and access to the Marina access routes identified in
Map 5--Greenspace and
Pathways must be
provided
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Marina Facilities Carparking
SO6 Adequate parking must be MS6 Parking spaces are
provided for any Marina provided at a minimum rate
Facility use of one (1) carpark for each
four (4) marina berths
Lot Size
SO7 Lot sizes and dimensions MS7 Lot sizes and dimensions
are consistent with the are consistent with Table 4,
desired character of the Column 2
Sector in which the lot is
located and with the
environmental qualities of
the site, and enable the
provision of adequate--
· open space and
buffering;
· ventilation and sunlight;
· privacy;
· car park and access;
· infrastructure services;
and
· other relevant on-site
requirements
Setbacks
SO8 The scale, bulk and MS8 The setbacks of buildings
location of a building on a from street frontages and
site does not adversely boundaries is consistent
impact on streetscape with Table 4, Column 3
amenity
1 Storeys as defined in City Plan 2005
1
2
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TABLE 4: LOT SIZES AND SETBACKS 1
Column 1 Column 2 Column 3
Sector Minimum Lot Size Setbacks
Marina Along the Marina Waterfront--
Sector
(i) buildings are set back a
minimum of five (5)
metres along any side
boundary to permit visual
and pedestrian access
corridors to the waterfront;
(ii) buildings are setback a
minimum of two (2)
metres from the paved area
along the waterfront.
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Dwelling In Area G: 700sqm Front Boundary (to road/access
House Sector point)
In Area H: 300sqm In Area G: 6 metres
In Area H: in alignment with the
adjoining and dominant
setback in the locality.
Rear Boundary (to waterfront)
4 metres
Side Boundary
· Where two (2) buildings on
adjoining lots share a party wall
at a side boundary--
o 0 metres; only on one
side; and
o for second side
boundary, as below for
detached.
· Where detached--
(a) 1.5 metres if the building is
4.5 metres high or less; or
(b) 2.0 metres if the building is
greater than 4.5 metres
high and does not exceed
7.5 metres in height; or
(c) 2.0 metres plus 0.5 metres
for every 3.0 metres or part
thereof by which the
building height exceeds
7.5 metres.
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Multiple 1,000 sqm Front Setbacks (to access road)
are aligned with the adjoining and
Dwelling
dominant setback in the locality; or
Sector
(a) Ground to 2nd storey: 2
metres
(b) 3rd storey and above: 4
metres
Side Boundary
(a) Buildings are set back a
minimum of--
(i) 5 metres along any
side boundary to
permit visual and
pedestrian access
corridors to the
waterfront; UNLESS
(ii) the side boundary
adjoins a permanent
area of public access
(such as a road or
park) where the width
of that public area
exceeds 6 metres,
then 2 metres; or
(iii) if a detached house--
i. 1.5 metres if the
building is 4.5
metres high or
less; or
ii. 2 metres if the
building is
greater than 4.5
metres high and
does not exceed
7.5 metres in
height; or
iii. 2 metres plus 0.5
metres for every
3 metres of part
thereof by which
the building high
exceeds 7.5
metres; or
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(iv) 1 metre from any
driveway located on
the site; and
Rear Boundary (waterfront,
where adjoining)
(a) if a detached house, as for
side boundary; or
(b) where adjoining waterside
pathways required by SO3,
2m from the public
pathway; or
(c) otherwise 3 metres.
1
10. DEFINITIONS 2
Terms used in this SCL Scheme have the meanings defined by the 3
City Plan 2005 or the Integrated Planning Act 1997, unless 4
otherwise defined as below-- 5
10.1 "Amenity Impacts" means impacts on amenity from the 6
lawful operation of the Port of Townsville including noise, 7
dust (air particle emissions), light, odour, electromagnetic 8
interference and other disturbances; 9
10.2 "City Plan 2005" includes all planning instruments for the 10
Townsville Local Government Area as amended (or 11
renamed); 12
10.3 "Council" means the Townsville City Council; 13
10.4 "Design Provisions" means provisions intended to minimise 14
Amenity Impacts that relate to-- 15
10.4.1 orientation of improvements on lots in any 16
community title scheme; 17
10.4.2 materials used in the construction of improvements, 18
including buildings; 19
10.4.3 attenuation stipulations, including in respect of 20
orientation, materials or location of living and 21
sleeping areas appropriately in buildings; 22
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10.4.4 location and choice of facilities and services 1
associated with improvements on lots in the 2
community title scheme; 3
10.5 "Dwelling House" means a Detached House as defined and 4
utilised within City Plan 2005 or any dwelling unit on an 5
independent lot with a single party wall (but excluding a 6
Multiple Dwelling); 7
10.6 "Local Government Area" means the Local Government 8
Area of Townsville; 9
10.7 "Marina Facilities" means administrative offices, boat 10
brokerage and charter facilities, chandlery, boat storage, 11
tackle and bait shop, fuelling provisions, marina associated 12
facilities and marina car parking; 13
10.8 "SCL Scheme Area" means the area identified as the SCL 14
Scheme Area in Map 1: SCL Scheme Area; 15
10.9 "SCL Scheme Code" means Part C, D and E of this SCL 16
Scheme; 17
10.10 "Site" means any land on which development is carried out or 18
is proposed to be carried out whether such land comprises-- 19
10.10.1 the whole or any one lot, or parcel of land; or 20
10.10.2 only part of one lot; or 21
10.10.3 more than one lot where each lot is contiguous with 22
the other or another lot; or 23
10.10.4 conjointly used lands which are not adjoining lands; 24
10.11 "Temporary Car Park" means the temporary parking of 25
cars on vacant land (prior to construction commencing of any 26
use approved under this SCL Scheme) for patrons of the 27
Entertainment Centre. 28
29
30
31
32
33
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11. MAPS 1
2
MAP 1 : SCL Scheme Area 3
4
MAP 2 : Area Sectors 5
6
MAP 3 : Building Heights 7
8
MAP 4 : Plot Ratio 9
10
MAP 5 : Greenspace and Pathways 11
12
MAP 6 : Reconfiguration Concept 13
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Map 1 1
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Map 2 1
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Map 3 1
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Map 4 1
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Map 5 1
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Map 6 1
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SCHEDULE 4--PLAN OF SUBDIVISION 1
'. 2
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Part 3 Repeal of regulation 1
Clause 8 Repeal 2
The Breakwater Island Casino Agreement Variation 3
Regulation 1997 SL No. 11 is repealed. 4
© State of Queensland 2006
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