South Australian Consolidated Acts South Australian Consolidated ActsDATED: 31st day of March 1993
DEED
BETWEEN
MINISTER OF TRANSPORT DEVELOPMENT
- AND -
DISTRICT COUNCIL OF PORT ELLIOT AND GOOLWA
- AND -
BINALONG PTY LTD
(A.C.N. 007 620 439)
DEED
BETWEEN
MINISTER OF TRANSPORT DEVELOPMENT a body corporate pursuant to the
Administration of Acts Act, 1910 of 14th Floor, State Administration
Centre, Victoria Square, Adelaide in the State of South Australia (hereinafter
called the "Minister") of the first part
AND
DISTRICT COUNCIL OF PORT ELLIOT AND GOOLWA a body corporate constituted under
or pursuant to the Local Government Act, 1934 of Cadell Street, Goolwa
(hereinafter called the "Council") of the second part.
AND
BINALONG PTY LTD ( A.C.N. 007 620 439 ) a company incorporated pursuant to the
Corporations Law and whose registered office is situated at Randell Road,
Hindmarsh Island in the said State (hereinafter called the "Company") of the
other part.
RECITALS
A. The Minister has
agreed to construct or procure the construction of a bridge between Goolwa and
Hindmarsh Island (hereinafter called the "Bridge").
B. The Minister has
incurred various costs and expenses in procuring the design of an appropriate
bridge and the preparation of the requisite technical specification and
architectural and engineering plans and drawings.
C. It is intended that
a tender specification be prepared for the purpose of seeking tenders from
persons interested in constructing the Bridge and completing any ancillary
works necessary or incidental to the construction of the Bridge.
D. The Minister, the
Council and the Company have agreed to contribute to the cost of the
completion of the said works. Further, the Council has agreed to contribute to
the costs of maintaining and upkeeping the Bridge.
E. The Minister, the
Council and the Company covenant that the Council and the Company shall
contribute to the construction and maintenance of the Bridge on the terms and
conditions contained in this Deed.
THE PARTIES COVENANT AS FOLLOWS .
1. RECITALS
The parties agree both that the matters referred to in the recitals of this
Deed are true and correct in every material particular and that the recitals
shall form part of this Deed.
2. DEFINITIONS & INTERPRETATION
2.1 Subject to any inconsistency of subject or
context, in the interpretation of this Deed the following terms and
expressions are stipulated as having the following meanings.
2.1.1 " Allotment "
means either "unit" for the purposes of the Strata Titles Act, 1988 or "
allotment" as defined in subsection 223la(1) of the Real Property
Act, 1886, i.e. ,
" " allotment" means —
(a) the
whole of the land comprised in a certificate;
(b) the
whole of the land comprised in a registered conveyance of land that has not
been brought under the provisions of this Act;
(c) a
separately defined piece of land that is delineated on a public map and
separately identified by number or letter (not being a piece of land that is
identified in a Treasury receipt, certificate or other document or instrument
of title as being part only of an allotment);
(ca) two
or more separately defined pieces of land that are delineated on a public map
and that are identified in a Treasury receipt, certificate or other document
or instrument of title as forming one allotment;
(d) a
separately defined piece of land delineated on a plan of division for the
purpose of enabling the separate ownership in fee simple of that land;
(e) a
separately defined piece of land identified as an allotment in a plan prepared
by the Registrar-General and accepted for filing in the Lands Titles
Registration Office,
but does not include any such land or piece of land that has ceased to be an
allotment by virtue of subsection (2)".
which is situated on Hindmarsh Island but excluding any allotment which is not
rateable pursuant to subsection 168(2) of the Local Government Act, 1934.
2.1.2 " Binalong Area
" means that land situated on Hindmarsh Island the subject of the Development
and which is more particularly defined as the "Residential Marina (Hindmarsh
Island) Zone" in the Supplementary Development Plan to the Development Plan
for the District Council of Port Elliot and Goolwa - Hindmarsh Island which
is, as at the date of this Deed, available for public inspection and which is
also intended, subsequently to the date of this Deed, to come into interim
operation pursuant to section 43 of the Planning Act, 1983. The said land
is delineated in red on a copy of a plan being Sheet 1A of the Company's
Application for Planning Consent dated March 1990 pursuant to section 51 of
the Planning Act, 1982, is attached as Schedule One.
2.1.3 " Bridge " means
the said bridge to be constructed between Goolwa and Hindmarsh Island in the
manner described in the recitals excluding any roads approaching or leading to
the said bridge.
2.1.4 " Charge " means
the third registered debenture charge over the Company's business and
undertaking and all of its property, assets and rights whatsoever and
wheresoever both real and personal, tangible and intangible and whether
present, future or contingent including, without limiting the generality of
the foregoing, the goodwill of the Company's business and its uncalled and
called but unpaid capital (including premiums) for the time being on the
Company's shares.
2.1.5 " Company
Payment " means a quarterly instalment paid by the Company to the Minister in
respect of the Debt.
2.1.6 " Construction
Contract " means the construction agreement to be entered into between the
Minister and the successful tenderer for the completion of the Works.
2.1.7 " Construction
Costs " means the sum of the following amounts:
(a) the
amount of six hundred and thirty five thousand dollars ($635,000.00); and
(b) the
aggregate amount of moneys incurred, paid or payable for the completion of the
Works by the Minister under or pursuant to the Construction Contract
including, without limitation, any reasonable variations to the cost or price
tendered for the completion of the Works under or pursuant to the Construction
Contract.
2.1.8 " Council
Payment " means a payment made by the Council to the Minister in respect of
the Debt.
2.1.9 " CPI Number "
means the Consumer Price Index number for Adelaide (All Groups) published,
from time to time, by the Australian Bureau of Statistics for the relevant
quarter specified in this Deed.
2.1.10 " Debt " means
the compounded aggregate amount, calculated in accordance with clause 7, of
the payments to be made by the Company and the Council to the Minister under
or pursuant to this Deed in respect of the Construction Costs.
2.1.11 " Default Rate
" means the following interest rates:
(a) in
relation to a Company Payment or any other payment to be made by the Company
to the Minister pursuant to this Deed, an interest rate equal to thirteen and
one half per cent (13.5%) per annum ; and
(b) in
relation to a Council Payment or any other payment to be made by the Council
to the Minister pursuant to this Deed, the interest rate which the Council
may, pursuant to paragraph 184(8)(c) of the Local Government Act, 1936,
charge or impose in respect of arrears of rates or of instalments of rates.
2.1.12 " Development "
means the six (6) stage development to be undertaken by the Company on
Hindmarsh Island as described in the development application made by the
Company to the Governor of the State of South Australia pursuant to section 51
of the Planning Act, 1982, consent for the undertaking of which was given
by the said Governor to the Company on or about 12 April 1990 subject to
the fulfilment of various conditions and as the description of which may have
been or may be amended, with the said Governor's consent, from time to time.
2.1.13 " Division "
means the division of land into Allotments, the subdivision or the
resubdivision of Allotments or the alteration of the boundaries of any
Allotments.
2.1.14 " Interest Rate
" means an interest rate equal to ten and one half per cent (10.5%) per annum
.
2.1.15 " Loan
Agreement " means a certain Deed of Loan and Guarantee made on the 17th day of
May 1991 between, among others, Partnership Pacific Limited and the Company as
amended by a Deed of Variation of Loan and Guarantee made on the 9th day of
October 1991 between the said persons.
2.1.16 "
Non-residential Allotment " means an Allotment which both is not a Residential
Allotment and is not a public road, a reserve, a public open space of any
other kind or any other land vested in or under the care, control and
management of the Crown, a statutory instrumentality or the Council.
2.1.17 " Partnership
Pacific Debt " means the amount payable by the Company to Partnership Pacific
Limited as at the date of this Deed in respect of loans, advances,
performances guarantees or other forms of credit or financial accommodation
made or provided by the said Partnership Pacific Limited to the Company in
relation to the Development under or pursuant to the Loan Agreement as
certified by Partnership Pacific Ltd in the written certificate to be provided
to the Minister pursuant to clause 17.
2.1.18 " Payment Date
" means any 31 March, 30 June, 30 September or 31 December of a year
during the Term on which a Company Payment is due and payable pursuant to this
Deed.
2.1.19 " Proposal "
means section 3.0 entitled "Proposal" of the Company's development application
dated March 1990 to the Governor for development consent, a copy of which is
contained in Schedule Two.
2.1.20 " Residential
Allotment " means the following Allotments:
(a) an
Allotment described as a "Residential Allotment" either in the specification
of the various components of each proposed stage of the Development contained
in the Proposal or in any amendment to this specification which is consented
to or agreed; or
(b) an
Allotment which is not so described as a "Residential Allotment" in the
Proposal or any amendment thereto but is an Allotment which is principally
used as a private dwelling or for residential purposes.
2.1.21 " Tender
Specification " means the documents in respect of the tender to be issued by
the Commissioner of Highways on behalf of the Minister for the completion of
the Works and which are to be entitled "Specification", "Construction
Drawings" and "Appendices and Standard Specification".
2.1.22 " Term " means
the period commencing on the date of this Deed and concluding on the date when
the Debt has been paid or satisfied in full under or pursuant to the
provisions of this Deed.
2.1.23 " Value of the
Non-residential Allotments " means the value of the relevant Non-residential
Allotments as determined pursuant to paragraph 9.3.3.
2.1.24 " Works " means
the construction of the Bridge together with the undertaking of certain
roadworks and any other ancillary works or tasks which are, in the opinion of
the Minister, necessary or incidental to the satisfactory construction of the
Bridge all of which are to be more particularly described in the Tender
Specification.
Subject to any inconsistency of subject or context, the following rules of
construction shall be used in the interpretation of this Deed:
2.2.1 words denoting
the singular number or plural number include the plural number and singular
number respectively;
2.2.2 words denoting
any gender shall include all genders;
2.2.3 headings are for
convenience only and shall not affect interpretation;
2.2.4 words denoting
individuals shall include corporations and vice versa;
2.2.5 a reference to a
recital, party, clause, schedule or annexure is a reference to a recital,
party, clause, schedule or annexure of this Deed;
2.2.6 a reference to
any Act, regulation or by-law shall be deemed to include all amendments
thereto and all statutory provisions substituted hereafter;
2.2.7 the use of "or"
shall be that of the inclusive "or", i.e. , meaning one, some or all of a
number of possibilities or alternatives; and
2.2.8 all references
to "dollars" and "$" are to Australian dollars.
3. DEED OF PRIORITY WITH PARTNERSHIP PACIFIC LTD
The parties acknowledge and declare that it is intended that the Minister and
Partnership Pacific Ltd enter into a deed of priority in relation to, among
other things, the repayment by the Company of the Partnership Pacific Debt,
the order of priority as between the Charge and the said Partnership Pacific
Ltd's security for the Partnership Pacific Debt and the making or granting by
the said Partnership Pacific Ltd to the Company of any further loans, advances
or other form of credit or financial accommodation subsequently to the date of
the said deed of priority.
4. COMPLETION OF THE WORKS
4.1 The Minister
covenants with the Council and the Company that the Minister shall procure the
completion of the Works.
4.2 The Minister
covenants with the Council that the Minister shall procure that the
Construction Contract contains provisions imposing obligations on the
successful tenderer that due care and skill shall be exercised in the
completion of the Works and that the Works shall be completed in a proper and
workmanlike manner using good and proper materials fit for the purpose for
which they are to be used or intended.
4.3 The Minister and
the Council acknowledge that the Bridge shall be vested in and be under the
care, control and management of the Minister on and from the date of the
completion of the Works.
5. CONTRIBUTION TO THE CONSTRUCTION COSTS
5.1 The Minister, the
Council and the Company covenant that the Company shall contribute to the cost
of the completion of the Works in the amount and in the manner set out in this
Deed.
5.2 The parties
covenant and acknowledge that the following principles have been agreed in
relation to determining the amount of the said contribution to be made by the
Company.
5.2.1 If the aggregate
amount of the Construction Costs are less than or equal to six million dollars
($6,000,000.00) then the said contribution shall be equal to one half (½)
of the said aggregate amount of the Construction Costs.
5.2.2 If the aggregate
amount of the Construction Costs are greater than six million dollars
($6,000,000.00) but less than or equal to seven million dollars
($7,000,000.00) then the said contribution shall be equal to the sum of three
million dollars ($3,000,000.00) and of the difference between the said
aggregate amount of the Construction Costs and six million dollars
($6,000,000.00).
5.2.3 If the aggregate
amount of the Construction Costs are greater than seven million dollars
($7,000,000.00) then the said contribution shall be equal to the amount
determined in accordance with paragraph 2 of this subclause.
5.2.4 The parties have
agreed that, during the period in which the Works are being constructed, the
progressive aggregate amount of the said contribution shall be determined in
accordance with the provisions of clause 7 and that this progressive aggregate
amount shall be compounded quarterly in accordance with the formulae set out
in subclause 7.1.
5.2.5 The parties have
agreed that the amount of six hundred thirty five thousand dollars
($635,000.00) is the total of all Construction Costs incurred or to be
incurred by the Minister in or incidental to completing the Works other than
the Construction Costs incurred pursuant or incidental to the Construction
Contract, including, without limitation, any reasonable variations to the cost
or price tendered for the completion of the Works payable under or pursuant to
the Construction Contract.
6. CERTIFICATION OF THE AMOUNT OF THE DEBT
6.1 The Minister, the
Council and the Company covenant that, for the purpose of determining the
amount of the Debt, the Minister shall provide to the Council and the Company
a written certificate of the total amount of the Construction Costs. The said
certificate shall, subject to the verification and audit of the said amount
pursuant to subclauses 6.2 and 6.3, be conclusive evidence of the said total
amount of the Construction Costs in the absence of any manifest error,
omission or miscalculation.
6.2 The Council or the
Company may, by the service of a written notice on the Minister, require the
Minister to substantiate the amount of the said total amount of Construction
Costs by providing an audited itemized statement of the said amount. The said
statement shall be audited by the Auditor-General. Further, the Minister shall
use her best endeavours to provide the said statement as soon as reasonably
practicable after the service of any such notice.
6.3 The Council or the
Company may, by the service of a written notice on the Minister, require the
Minister to provide access to the Minister's financial records in respect of
the Construction Costs for the purpose of verifying the said total amount of
the Construction Costs. The Minister shall provide the said access within
twenty eight (28) days of the service of any such notice. Further, the Council
or the Company, may at its own cost and expense in all things, appoint an
auditor to verify and audit the said financial records.
6.4 The Council or the
Company may, by written notice served on the Minister within thirty (30) days
of being given access to the Minister's financial records, dispute the said
total amount of the Construction Costs. Any such dispute shall be determined
by a suitably qualified person agreed upon between the parties or, in the
absence of any such agreement, shall be determined by a person nominated by
the Auditor-General. The person appointed to determine any such dispute shall
act as an independent expert and not as an arbitrator. Further, the parties
covenant that they shall each not dispute or challenge or purport to dispute
or challenge, whether by instituting litigious proceedings or otherwise, the
determination of a dispute by any such person.
7. CALCULATION OF THE DEBT AND THE AMOUNT OF THE
COMPANY PAYMENTS
7.1 The parties
acknowledge and declare in the following terms in respect of the following
matters:
7.1.1 that the
formulae set out in subclauses 7.2 and 7.4 operate in the following manner:
(a)
pursuant to formula (1) set out in subclause 7.2, the change in the Debt in a
relevant quarter is equal to the sum in that quarter of the amount of the
Construction Costs incurred and which are to be added to the amount of the
Debt pursuant to subclause 7.3, of the aggregate amount of moneys paid by the
Minister to the Council pursuant to subparagraphs 11.2.2(a) and (b) less the
aggregate amount of Council Payments and Company Payments;
(b)
pursuant to formula (2) set out in subclause 7.2, the amount of the Debt is to
be compounded at the end of each quarter at a rate equal to one quarter of the
Interest Rate; and
(c)
pursuant to the formula set out in subclause 7.4, the amount of each four (4)
consecutive Company Payments is to be determined on a credit foncier basis
such that the amount of a Company Payment is that amount which would be
sufficient to pay or repay the amount of the Debt by the payment of equal
quarterly instalments during the period commencing on the date on which the
amount of such Company Payments is being calculated pursuant to subclause 7.4
and concluding at the end of the quarter being forty eight (48) entire
quarters after the date of practical completion of the Works;
7.1.2 if there is any
ambiguity or inconsistency in the interpretation, construction or operation
between paragraph 7.1.1 and subclauses 7.2 and 7.4 then subclauses 7.2
and 7.4 shall prevail to determine any such ambiguity or inconsistency.
7.2 The parties agree
that the amount of the Debt from time to time shall be compounded quarterly on
31 March, 30 June, 30 September and 31 December of each year of the Term such
that amount of the Debt shall be determined in accordance with the following
formulae:
|
|
(1) |
|
|
(2) |
where:
" D n " is the compounded amount of the Debt as at the end of the (n)th
quarter;
" X n " is the change in the Debt in the (n)th quarter;
" C n " is the amount of the Construction Costs incurred in the (n)th quarter
which is to be added to the amount of the Debt pursuant to subclause 7.3;
" R n " is the aggregate of the Council Payments made in the (n)th quarter;
" P n " is the aggregate amount of the Company Payments made in the (n)th
quarter;
" S n " is the aggregate amount of moneys paid by the Minister to the Council
pursuant to subparagraphs 11.2.2(a) and (b) in the (n)th quarter i.e. , any
payments made by the Minister to the Council in respect of refunds of rates or
pursuant to the Minister's indemnity in respect of legal proceedings or making
refunds of rates; and
" n " is the number of (n)th consecutive quarter from the first quarter ( i.e.
, n=1) which commenced on 1 January 1993 and which will conclude on 31 March
1993.
7.3 For the purposes
of the application of the formulae set out in subclause 7.2 and of the
calculation of the amount of the Debt the parties agree as follows.
7.3.1 "C n " shall be
determined in the following manner.
(a) If
and until the progressive aggregate amount of Construction Costs is less than
or equal to six million dollars ($6,000,000.00) then "C n " for any quarter
"n" shall include one half (½) of the Construction Costs incurred in that
quarter "n" to the extent that the said progressive aggregate amount is less
than or equal to six million dollars ($6,000,000.00).
(b) If
the progressive aggregate amount of Construction Costs is greater than the
said six million dollars ($6,000,000.00) but less than or equal to seven
million dollars ($7,000,000.00) then "C n " for any such quarter "n" shall
include the Construction Costs incurred in that quarter "n" to the extent that
the said progressive aggregate amount is greater than six million dollars
($6,000,000.00) but less than or equal to seven million dollars
($7,000,000.00).
(c) If
the progressive aggregate amount of Construction Costs in a quarter "n" is
greater than the said seven million dollars ($7,000,000.00) then "C n " for
any such quarter "n" shall not include the Construction Costs incurred in that
quarter "n" to the extent that the said progressive aggregate amount is
greater than seven million dollars ($7,000,000.00).
7.3.2 The first
quarter ( i.e. , n=1) shall commence on 1 January 1993 and conclude on 31
March 1993.
7.3.3 As at 1 January
1993, the amount of the Construction Costs incurred and the amount of the Debt
is deemed to be three hundred and seventeen thousand five hundred dollars
($317,500.00) and one hundred fifty eight thousand seven hundred and fifty
dollars ($158,750.00) respectively.
7.3.4 The amount of
1.02625 is equal to the sum of one (1) and of one quarter (1/4) of the
Interest Rate.
7.3.5 The Construction
Costs for the quarter in which occurs the date of practical completion of the
Works shall be deemed to include the amount of three hundred and seventeen
thousand five hundred dollars ($317,500.00) in addition to the amount of the
Construction Costs actually incurred in this quarter.
7.4 The parties agree
that the amount of each Company Payment shall be calculated annually, in
respect of the first four Company Payments, as from the first Payment Date,
and, thereafter, in respect of the four Company Payments to be made in a year
of the Term commencing on an anniversary of the first Payment Date, on each
anniversary of the first Payment Date, on a credit foncier basis in accordance
with the following formula:
where:
" PMT " is the amount of the quarterly Company Payment payable in a year of
the Term commencing either on the first Payment Date or on an anniversary of
the first Payment Date;
" D " is the amount of the Debt, calculated in accordance with subclause 7.2,
either as at the first Payment Date or as at an anniversary of the first
Payment Date;
" t " is the number of quarters remaining in the period commencing on the
Payment Date on which the amount of a Company Payment is being calculated and
concluding at the end of the quarter being forty eight (48) entire quarters
after the date of practical completion of the Works;
" LS " is the aggregate amount of any lump sum payments made by the Council to
the Minister pursuant to subclause 9.4 in the quarter ending on a relevant
Payment Date in respect of Allotments in the Binalong Area of which the
Company is the registered proprietor.
7.5 The parties
covenant and acknowledge that, until the condition precedent specified in
paragraph 8.1.6 is satisfied, all Council Payments made by the Council shall,
in accordance with the foregoing principles and formulae, be applied in or
towards the reduction of the Debt.
8. MANNER OF PAYMENT OR REPAYMENT OF THE DEBT
8.1 The Minister, the
Council and the Company covenant that the Company shall pay or repay the
Contribution to the Minister in the following manner.
8.1.1 Subject to
paragraph 7 of this subclause, the Company shall pay or repay the Debt to the
Minister over the period commencing on the first Payment Date and concluding
at the end of the quarter being forty eight (48) entire quarters after the
date of practical completion of the Works by the payment of quarterly
instalments, the amount of each of which is to be calculated in accordance
with the provisions of this Deed.
8.1.2 The Company
shall pay each Company Payment on each Payment Date occurring during the Term.
8.1.3 The first
Company Payment to be paid by the Company to the Minister under or pursuant to
this Deed shall be due and payable on the first Payment Date, being the 31
March, 30 June, 30 September or 31 December of the fourth (4th) quarter
occurring after the end of the quarter in which the condition precedent to the
Company's obligation to commence paying or repaying the Debt specified in
paragraph 6 has been satisfied.
8.1.4 The amount of
each Company Payment shall be calculated in accordance with the formula set
out in subclause 7.4.
8.1.5 The amount both
of the Debt and of the Company Payments shall be recalculated on each
anniversary of the first Payment Date during the Term in the manner specified
in clause 7 of this Deed.
8.1.6 The obligation
of the Company to commence paying or repaying the Debt to the Minister under
or pursuant to this clause shall be subject to and conditional upon the
Company paying or satisfying the Partnership Pacific Debt or being released or
discharged from the payment or satisfaction of the Partnership Pacific Debt
such that the amount of the Partnership Pacific Debt, at that time, is less
than or equal to ONE MILLION DOLLARS (($1,000,000.00).
8.1.7 If, at any time
before the Debt has been paid or repaid in full to the Minister, the
Development is completed such that a least ninety five per cent (95%) of the
total number of Residential and Non-residential Allotments described in the
Proposal subdivided or created by the Company for the purpose of sale,
disposal or leasing have been sold and settlements have been effected then the
entire amount of the Debt calculated in accordance with the provisions of this
Deed as is outstanding at that time shall be due and payable by the Company to
the Minister on or before the expiration of thirty (30) days from the date of
the said completion of the Development.
8.2 If, for any
quarter during the Term, the aggregate amount of lump sum payments made by the
council pursuant to subclause 9.4 is greater than the Company Payment payable
in the absence of any such lump sum payments for that quarter determined in
accordance with subclause 7.4 ( i.e. , "LS" is greater than
then the amount of the difference shall be credited or applied in or towards
the Company Payments to be made in succeeding quarters.
8.3 The payment or
repayment of the Debt shall be secured by the Company granting the Charge to
the Minister. The following provisions shall apply to the Charge together with
any associated instrument, 'form or other document necessary to register the
Charge:
8.3.1 they shall be in
such form as may be required by the Minister;
8.3.2 they shall be
prepared by the Crown Solicitor's Office; and
8.3.3 they shall be
executed by the Company and returned to the Minister within three (3) business
days of their delivery to the Company or the Company's solicitors.
8.4 The Company shall
pay its own and the Minister's costs and expenses, including all legal costs
and expenses, of and incidental to the negotiation, preparation and
engrossment of the Charge or any other form of document necessary to register
the Charge. The Company shall pay any stamp duty and registration fees payable
in respect of the Charge.
9. COUNCIL PAYMENTS
The Council covenants with the Minister that the Council shall pay the Council
Payments to the Minister for the purpose of decreasing the amount of the Debt
such that each Council Payment shall be applied by the Minister in reduction
of the Debt in accordance with the provisions of this Deed. The Council
further covenants with the Minister that the Council shall pay Council
Payments to the Minister in the following manner.
9.1 The Council shall
pay Council Payments to the Minister annually in each year of the following
period:
9.1.1 the period which
commences on the later either of the 31 January first occurring after the date
of practical completion of the works or of 31 January 1995; and
9.1.2 the period which
concludes on the earlier either of the expiration of the Term or of the
twentieth anniversary of the date of commencement of this period specified in
paragraph 1.
9.2 The Council shall
pay the Council Payments annually on or before 31 January of each year during
the period specified in subclause 1 of this clause.
9.3 The amount of an
annual Council Payment shall be determined in accordance with the following
formula:
9.3.1 —
where:
" CP " is the amount of the Council Payment payable in a year of the period
specified in subclause 9.1;
" N 1 " is, subject to paragraph 9.3.4, the number of Residential Allotments
situated on Hindmarsh Island but outside of the Binalong Area which were
subdivided or created after the date on which the Minister accepted, pursuant
to the Tender Specification, the successful tenderer's tender for the
completion of the Works, as at the 1 June immediately preceding the date on
which a Council Payment is payable;
" N 2 " is the number of Residential Allotments in the Binalong Area as at the
1 June immediately preceding the date on which a Council Payment is
payable;
" A " is the amount calculated pursuant to paragraph 9.3.2;
" V 1 " is, subject to paragraph 9.3.4, the Value of the Non-residential
Allotments, as determined pursuant to paragraph 9.3.3, in respect of
Non-residential Allotments situated on Hindmarsh Island but outside of the
Binalong Area which were subdivided or created after the date on which
Minister accepted, pursuant to the Tender Specification, the successful
tenderer's tender for the completion of the Works; and
" V 2 " is the Value of the Non-residential Allotments, as determined pursuant
to paragraph 9.3.3, in respect of Non-residential Allotments in the Binalong
Area.
9.3.2 The amount A in
the formula set out in paragraph 9.3.1 shall be calculated annually during the
period specified in subclause 9.1 in the following manner:
where:
" A " is the amount to be determined;
" B " is the CPI Number for the quarter ending on the 31 March immediately
before a Council Payment is payable;
" C " is the CPI Number for the quarter ended on 31 March 1992.
9.3.3 The Value of the
Non-residential Allotments ( i.e. , "V 1 " and "V 2 " in the formula set out
in subclause 9.3) shall be determined annually during the period specified in
subclause 1 of this clause and shall be equal to the aggregate capital value,
as determined by the Valuer-General pursuant to the
Valuation of Land Act, 1971, of the relevant Non-residential Allotments
subdivided or created as at the 1 June immediately preceding the date on which
a Council Payment is payable.
9.3.4 If there occurs
the Division of any Allotments, other than the Division of an Allotment or
Allotments situated outside of the Binalong Area which were subdivided or
created before the date on which the Minister accepted, pursuant to the Tender
Specification, the successful tenderer's tender for the completion of the
Works such that such a Division does not increase the number of Allotments,
then the number of Residential Allotments ("N 1 " and N 2 ") and the Value of
the Non-residential Allotments ("V 1 " and "V 2 ") shall be determined by
reference to the Division of the said Allotments in the current Plan of
Division deposited in respect of the said Division in the Lands Titles
Registration Office for the purposes of the Real Property Act, 1886 or
the Strata Titles Act, 1988.
9.4 The Council may,
from time to time, elect to pay to the Minister the lump sum amount of four
thousand five hundred dollars ($4,500.00) either in respect of an Allotment in
the Binalong Area or in respect of an Allotment situated on Hindmarsh Island
but outside of Binalong Area and which was subdivided or created after the
date on which the Minister accepted, pursuant to the Tender Specification, the
successful tenderer's tender for the completion of the Works. If the council
makes any such payment in respect of any such Allotment then that Allotment
shall not be included in determining the number of Residential Allotments ("N
1 " and "N 2 ") or the Value of the Non-residential Allotments ("V 1 " and "V
2 ") (as the case may be) for the purposes of the formula set out in paragraph
9.3.1.
9.5 If the Council
receives from ratepayers any lump sum payments in respect of Allotments
referred to in subclause 9.4 then the Council covenants that it shall pay to
the Minister, in respect of the Debt, an amount equivalent to any such
payments within thirty (30) days of the Council's receipt of the said lump sum
payments.
9.6 The Council shall,
together with any Council Payment or any payment made pursuant to subclause
9.5, provide to the Minister an itemized statement containing the following
information:
9.6.1 the number of
Allotments included in "N 1 " and "N 2 " for the purposes of the application
of the formula set out in paragraph 9.3.1 to which the Council Payment
relates;
9.6.2 the Values of
the Non-residential Allotments "V 1 " and "V 2 " for the purposes of the
application of the formula set out in paragraph 9.3.1 to which the Council
Payment relates;
9.6.3 the value of "A"
used in calculating the amount of the relevant Council Payment; and
9.6.4 if the relevant
payment is made by the Council pursuant to subclause 9.4 then an apportionment
of the amount of the payment between Residential Allotments and
Non-residential Allotments.
10. TERMINATION OF OBLIGATIONS TO MAKE COUNCIL
PAYMENTS AND COMPANY PAYMENTS
If the amount of the Debt as determined pursuant to this Deed is equal to or
less than zero then both the Company's obligation to make Company Payments and
the Council's obligation to make Council Payments shall cease and terminate
absolutely.
11. DECLARATION OF A SEPARATE RATE OR A
DIFFERENTIAL SEPARATE RATE
11.1 The Minister and
the Council acknowledge that the Council may fund or finance the Council
Payments by declaring, under or pursuant to the Local Government
Act, 1934, either a separate rate or a differential separate rate. The
Minister and the Council covenant if the Council proposes to declare any such
separate rate or differential separate rate then the Council shall consult and
confer with the Minister or her legal advisers in respect of all matters or
things relating or incidental to any such declaration, other than matters or
things relating or incidental to any procedural requirement stipulated in the
Local Government Act, 1934 or elsewhere for the declaration of rates or
the imposition of charges by councils, for the purpose of ensuring, to the
greatest extent possible, that the declaration of any such rate is within the
Council's power.
11.2 Subject to
subclause 3 of this clause, if a court of competent jurisdiction determines
that it is beyond the power of the Council to declare a said separate rate or
differential separate rate whether because the Council is not empowered to
declare such a rate or because it would constitute an exercise of power by the
Council for an improper purpose then the following provisions shall apply:
11.2.1 the amount of
the next Council Payment due after the said decision has been delivered shall
be decreased to the extent required by the said decision by excluding from the
calculation, pursuant to subclause 9.3, of the amount of that Council Payment
and any subsequent Council Payments any Allotments the subject of or which are
affected by the said decision to the extent to which the declaration of the
said separate rate or differential separate rate was beyond the Council's said
powers;
11.2.2 if, as a
consequence of the said decision, the Council is required to refund to
ratepayers any moneys collected by way of the said separate rate or
differential separate rate then the following provisions shall apply:
(a) the
Minister shall pay to the Council an amount equal to the aggregate amount of
the said refunds which have been paid to the Minister by way of Council
Payments within thirty (30) days of the Minister receiving from the Council a
written notice requesting such a payment together with an itemized statement
setting out the manner in which the amount of the said payment has been
calculated; and
(b) the
Minister shall indemnify and keep indemnified the Council for any cost,
expense or loss reasonably incurred by the Council as a consequence of the
said decision in respect of or incidental to either the legal proceedings in
which the said decision was made or the making of the said refunds.
11.3 The operation of
subclause 2 of this clause, and, in particular, the Minister's obligation to
pay moneys to the Council or to indemnify the Council shall be subject to and
conditional upon the satisfaction of the following provisions:
11.3.1 the said
separate rate or differential separate rate must have been declared in
relation to land situated on Hindmarsh Island;
11.3.2 the Council
shall consult and confer with the Minister for the purpose of determining, in
light of the said decision, a basis on which a separate rate, a differential
separate rate or a differential general rate may be validly declared by the
Council in order to fund or finance the Council Payments;
11.3.3 the reason
given by the court in making the said decision was that it was beyond the
Council's power, as aforesaid either because the Council is not empowered to
declare such a rate or because it constitutes an exercise of power by the
Council for an improper purpose, to declare the rate in issue;
11.3.4 the said
decision did not hold that the sole reason for the invalidity of the said rate
was because the Council failed to perform, observe or comply with a procedural
requirement stipulated in the Local Government Act, 1934 or elsewhere for the
declaration of rates or the imposition of charges by councils; and
11.3.5 the proceedings
in respect of which the said decision was made or any appeal or case stated
from the original proceedings or the said decision were conducted in the
manner directed by the Minister or her duly authorized delegates, employees or
agents in accordance with the provisions of this clause.
11.4 The Minister and
the Council covenant that the Minister and the Council shall consult in
relation to all matters or things relating or incidental to defending any
proceedings instituted against the Council which challenge the validity of the
said separate rate or differential separate rate or any appeal or case stated
from any such original proceedings. The Minister and the Council further
covenant that the Minister may, after consultation with the Council, direct,
in her absolute and unfettered discretion, the Council in respect of any
matter or thing relating or incidental to any such proceedings, appeal or case
stated, including, without limitation, selecting and instructing solicitors
and counsel and the settling of any such proceedings, appeal or case stated.
11.5 If the Council
has not paid a Council Payment or a part thereof on or before 31 January of a
year during the period specified in subclause 1 of this clause and that
non-payment arises as a consequence of ratepayers failing to pay to the
Council the separate rate or the differential separate rate referred to in
clause 11 which the Council may declare then the Minister covenants that the
Minister shall not institute any legal proceedings against the Council for the
payment of a Council Payment or part thereof payable under or pursuant to this
Deed until after the fourth anniversary of the 31 January on which that
Council Payment become due and payable under or pursuant to this Deed.
12. DEFAULT INTEREST
12.1 If a Council
Payment, Company Payment or any other payment to be made by either the Council
or the Company to the Minister pursuant to this Deed has not been made by the
due date specified in this Deed then the Company or the Council (as the case
may be) shall pay interest on the amount of any such payment due and payable
until payment is made to the Minister.
12.2 Any such
outstanding payment shall bear interest at the Default Rate.
12.3 All default
interest payable by the Company or the Council (as the case may be) shall be
paid contemporaneously with the outstanding payment to which the default
interest relates.
12.4 Default interest
shall be calculated in the following manner:
12.4.1 in respect of
an outstanding amount payable by the Company, daily on the amount of the
outstanding payment; and
12.4.2 in respect of
an outstanding amount payable by the Council, in the manner prescribed by the
Local Government Act, 1936.
12.5 Any payment
received after 4:00 p.m. on a business day shall be deemed to have been
received on the next business day for the purposes of the calculation of the
amount of default interest payable by the Company or the Council (as the case
may be) under or pursuant to this Deed.
13. OPERATION & TERM OF THIS DEED
Subject to this Deed, the provisions of this Deed shall have effect and
operate for the Term.
14. PROVISION OF INFORMATION
The Company shall, within twenty eight (28) days of its receipt of a written
request from the Minister, provide the Minister with such information as the
Minister may require in respect of any matter or thing relating or incidental
to the Partnership Pacific Debt, the Company's other debts or liabilities from
time to time, the Development or the state of affairs concerning the sale of
Allotments created as a consequence of the progress of the Development.
15. COMMUNICATION WITH PARTNERSHIP PACIFIC AND
OTHER FINANCIERS
15.1 The Company
covenants that the Minister may discuss, communicate and consult directly with
or obtain information from Partnership Pacific Ltd or any other creditor of
the Company from time to time in respect of any matter or thing relating or
incidental to the Partnership Pacific Debt or the Company's other debts or
liabilities from time to time including the provision of any relevant
agreements, securities or other documents relating or incidental to the
Company's indebtedness to the said Partnership Pacific Ltd or other creditor.
15.2 The Company
covenants with the Minister that subclause 15.1 constitutes both the Company's
consent, approval or authority to Partnership Pacific Limited to disclose the
information or provide the documents referred to in that clause and the
Company's waiver of any duties of confidentiality which the said Partnership
Pacific Ltd may owe to the Company as a consequence of a banker - customer
relationship or any other relationship between them.
16. ACCOUNTING RECORDS & FINANCIAL STATEMENTS
The Company covenants in the following terms in respect of the following
matters or things:
16.1 that the Company
shall keep and maintain proper accounting records in such manner and form as
may be required by law;
16.2 that such
accounting records are available for inspection by the Minister or any of the
Minister's employees or agents authorized in writing for that purpose during
usual business hours upon the Minister giving to the Company not less than
twenty eight (28) days' written notice;
16.3 that such
accounting records shall be kept at the registered office of the Company or
such other place where such accounting records are usually kept from time to
time;
16.4 that the Minister
may, by written notice served on the Company, require that the balance sheet,
profit and loss statement and any other financial statements required by law
to be prepared in relation to the affairs of the Company are audited, at the
Company's cost in all things, for each financial year during the term of this
Deed; and
16.5 that the Minister
is provided, within thirty (30) days of the end of a financial year, with
copies of a set of the Company's final financial statement or accounts,
whether audited or not, in respect of each financial year during the term of
this Deed, and, if the Company's financial statements are audited, copies of
any management letters between the Company and its auditors.
17. THE PARTNERSHIP PACIFIC DEBT
17.1 The Company shall
provide to the Minister, on the date of the Company's execution of this Deed,
a certificate from Partnership Pacific Limited which specifies the amount of
the Partnership Pacific Debt as at the date of this Deed.
17.2 The Company
warrants and represents to the Minister that, as at the date of this Deed, the
amount of the Partnership Pacific Debt is as specified in the said letter.
17.3 For the purposes
of this Deed and in particular for the satisfaction of the condition precedent
specified in paragraph 8.1.6, the Partnership Pacific Debt shall be deemed to
be paid or repaid by the Company in the following manner.
17.3.1 All payments
made by the Company to Partnership Pacific Ltd on and from the date of this
Deed shall be deemed to be paid in reduction of the Partnership Pacific Debt.
17.3.2 The Partnership
Pacific Debt shall be deemed to be notionally paid or repaid in full when the
aggregate amount of payments made by the Company to Partnership Pacific Ltd is
sufficient to pay, satisfy or discharge in full, in accordance with the Loan
Agreement, the Partnership Pacific Debt together with interest on the
Partnership Pacific Debt charged in accordance with the Loan Agreement.
17.4 The Company
covenants with the Minister that the Company shall, on each 1 July and 1
January of the Term, provide to the Minister a written statement setting out
the following information for each period during the Term commencing either on
1 January and concluding on 30 June or on 1 July and concluding on 31
December:
17.4.1 the amounts of
any payments made by the Company to Partnership Pacific Ltd in respect of the
Partnership Pacific Debt or any other indebtedness or liability owed or
payable by the Company to Partnership Pacific Ltd;
17.4.2 the dates on
which any such payments were made;
17.4.3 the interest
rates applicable during the period to which the said written statement
relates, including any applicable penalty or default interest rates;
17.4.4 any changes to
the said interest rates during the period to which the said written statement
relates; and
17.4.5 any other
information, facts or data which the Minister may reasonably require in order
to be able to calculate whether the Partnership Pacific Debt has been paid,
satisfied or discharged in full in accordance with the principles set out in
subclause 17.3.
18. PAYMENT BY THE MINISTER OF THE PARTNERSHIP
PACIFIC DEBT
18.1 The Minister and
the Company covenant that the Minister may, at any time during the Term, pay
or repay to Partnership Pacific Ltd for and on behalf of the Company the
amount outstanding in respect of the Partnership Pacific Debt at that time for
the purpose of paying or satisfying the Partnership Pacific Debt in full.
18.2 If the Minister
exercises her election or option to pay or satisfy the Partnership Pacific
Debt for and on behalf of the Company then the condition precedent contained
in paragraph 8.1.6 shall be satisfied on the date on which any such payment is
made.
18.3 The Minister and
the Company covenant and acknowledge that the amount of any such payment made
by the Minister in respect of the Partnership Pacific Debt shall be a separate
debt to the Debt. The Minister and the Company further covenant and
acknowledge in the following terms in respect of the following matters:
18.3.1 that the amount
of the said separate debt shall be compounded at the end of each quarter at a
rate equal to one quarter of the Interest Rate in the same manner as the Debt
is to be compounded pursuant to subclause 7.2;
18.3.2 that the
compounded amount of the said separate debt shall be paid or repaid in the
period specified in paragraph 8.1.1 during which the Debt is to be paid or
repaid;
18.3.3 that the amount
of each payment to be made by the Company in respect of the said separate debt
shall be calculated in the same manner as the amount of a Company Payment is
to be calculated pursuant to subclause 7.4 both such that the reference to the
"Debt" in the formula set out in that subclause is to be construed as a
reference to the said separate debt and such that "LS" in this formula is
equal to zero; and
18.3.4 that the
Company shall pay each such payment in respect of the said separate debt on
each Payment Date together with the Company Payment due and payable on that
date.
19. MAINTENANCE OF THE BRIDGE
19.1 The Minister and
the Council covenant and acknowledge that the Minister shall be responsible
for the maintenance and upkeep of the Bridge on and from the date of practical
completion of the Works.
19.2 The Minister and
the Council covenant that the Council shall contribute to the cost of
maintaining and upkeeping of the Bridge in the following manner.
19.2.1 The Council
shall pay the first such maintenance payment on or before thirty (30) days of
being served with a notice from the Minister requesting payment together with
a certificate of practical completion of the Works issued under or pursuant to
the Construction Contract.
19.2.2 The Council
shall pay all subsequent maintenance payments annually in advance on the
anniversary of the date of practical completion of the Works.
19.2.3 The amount of
each maintenance payment shall be determined in accordance with the following
formula:
" A " is the amount of the maintenance payment;
" B " is the amount of twelve thousand dollars ($12,000.00);
" C " is, in respect of the first maintenance payment, the CPI Number for the
quarter ending immediately before the date of the service of the said notice,
or, is, in respect of all subsequent maintenance payments, the CPI Number for
the quarter ending immediately before the anniversary of the said date of
practical completion of the Works;
" D " is the CPI Number for the quarter ending on 30 June 1993.
19.3 The Minister and
the Council covenant and acknowledge that, unless otherwise agreed in writing,
the effect and operation of this clause together with such other provisions as
may be necessary for this purpose shall continue and survive the expiration of
the Term and the consequent termination of the other provisions of this Deed.
19.4 The Minister and
the Council acknowledge and declare that, for the purposes of this clause, the
expression "date of practical completion of the Works" bears the same meaning
as that stipulated for it in the Construction Contract.
19.5 The Minister and
the Council acknowledge and declare that, for the purposes of this clause,
"Bridge" shall refer to the actual bridge structure and shall be interpreted
or construed to exclude any reference to roads approaching or leading to the
bridge structure. Further, the said actual bridge structure is pictorially
represented as being between the two points denoted "End of Deck" in an
elevation of the Bridge contained in Drawing No. 23C036/02 prepared by PPK
Consultants and which is contained in the Tender Specification. The Minister
and the Council further acknowledge and declare that, pursuant to the
provisions of the Local Government Act, 1934, any such roads approaching
or leading to the said bridge structure shall be "public roads or streets" and
consequently the Council shall maintain or repair any such roads in accordance
with the provisions of the said Act.
20. ASSISTANCE
The Council and the Company, jointly and severally, covenant to provide the
Minister with such reasonable assistance as the Minister or her employees,
agents, delegates or contractors may require for the purpose of or incidental
to the completion of the Works.
21. ACCESS
The Council and the Company, jointly and severally, covenant to permit the
Minister or her duly authorized employees, agents, delegates or contractors
such access as may be required to any land vested in, possessed by or under
the control of the Company or the Council for the purpose of or incidental to
the completion of the Works upon receipt from the Minister of a period of
notice which is reasonable in all of the circumstances, other than in the case
of an emergency where prior notice is not required.
22. TIME OF THE ESSENCE
Time shall be of the essence in respect of any time, date or period specified
in this Deed.
23. EMPLOYEES & AGENTS
The parties covenant and acknowledge that any act, matter or thing which
either is required to be performed or done by a party or is permitted to be
performed or done by a party may be performed or done by a party's duly
authorized employees, agents, delegates or contractors.
24. FURTHER ASSURANCES
The parties shall do all acts, matters and things and sign all documents and
shall cause to be done all acts necessary to give full effect to the terms of
this Deed.
25. ENTIRE DEED
This Deed contains the entire agreement between the parties in respect of the
subject matter hereof and the parties agree that this Deed supersedes and
extinguishes any prior agreement or understanding (if any) between the
parties. Further, no other agreement, whether collateral or otherwise, shall
be taken to have been formed between the parties by reason of any promise,
representation, inducement or undertaking (if any) given or made by one party
to the other prior to the date hereof.
26. WAIVER
26.1 A waiver of a
provision of this Deed must both be in writing and be signed by each party or
by a person duly authorized to execute such a document on behalf of a party.
26.2 No waiver by a
party of a breach of a term or condition of this Deed shall operate as a
waiver of another breach of the same or of any other term or condition of this
Deed.
26.3 No forbearance,
delay or indulgence by a party in enforcing the provisions of this Deed shall
prejudice or restrict the rights of that party in any way.
27. MODIFICATION
This Deed shall not be amended or varied other than by a written instrument
expressed both to be a Deed and to be supplemental to or in substitution for
the whole or a part of this Deed. Further, any such instrument shall be signed
by each party or by a person duly authorized to execute such an instrument on
behalf of a party.
28. SEVERANCE
If a provision of this Deed should be for any reason unlawful, void, invalid
or unenforceable then the offending provision shall be severed from this Deed
without affecting the validity or enforceability of the remainder of this
Deed.
29. NOTICES
29.1 Any notice to be
given or made pursuant to the provisions of this Deed shall be in writing and
may be signed by the authorized agent of the party giving the same. Notices
may be served by delivery, mail or facsimile transmission to the following
addresses and numbers.
29.1.1 To the
Minister:
Minister of Transport Development
14th Floor
State Administration Centre
Victoria Square
ADELAIDE SA 5000
Facsimile: (08) 226 0844
29.1.2 To the Council:
The District Clerk
District Council of Port Elliot and Goolwa
PO Box 21
GOOLWA
S.A. 5214
Facsimile: (085) 553 603
29.1.3 To the Company:
Binalong Pty Ltd
Randell Road
HINDMARSH ISLAND SA 5214
Facsimile: (085) 553
890
29.2 All such notices
and communications shall be effective and be deemed to have been received in
the following circumstances:
29.2.1 if delivered,
upon delivery;
29.2.2 if sent by
mail, upon posting; or
29.2.3 if sent by
facsimile transmission, upon receipt of the receiver's answer back code.
29.3 A party may
modify either its address or its facsimile number, from time to time, by a
written notice served on the other party.
30. COSTS & STAMP DUTY
30.1 Each party shall
bear their own costs incurred in and incidental to the negotiation,
preparation and execution of this Deed.
30.2 The Minister
shall be responsible for and pay any stamp duty assessed or charged in respect
of this Deed.
31. PROPER LAW
31.1 The proper law of
this Deed shall be the law of South Australia and accordingly this Deed shall
be governed by and construed in accordance with the laws of the said State.
31.2 The parties
irrevocably covenant and agree for the benefit of the other that the courts of
the State of South Australia shall have jurisdiction to hear and determine any
suit, action or proceeding and to settle any disputes which may arise out of
or in connection with this Deed and for such purposes the parties irrevocably
submit to the non-exclusive jurisdiction of such courts. Each party
acknowledges that the courts of South Australia constitute the most convenient
forum to hear and determine any such suits, actions, proceedings or disputes.
Furthermore, each party waives any right it has to object to an action being
brought in these courts, to claim that the action has been brought in an
inconvenient forum or to claim that these courts do not have jurisdiction. The
parties further agree that any suits, actions, disputes or other litigious
proceedings brought in a Federal court shall be instituted in the Adelaide
Registry of any such Federal court.
|
Executed unconditionally as a Deed on the 31st day of March 1993. | ||
|
THE COMMON SEAL of the MINISTER OF TRANSPORT DEVELOPMENT is hereunto affixed
in the presence of: |
} |
[signed] |
|
[signed] | | |
|
| | |
|
THE COMMON SEAL of DISTRICT COUNCIL OF PORT ELLIOT AND GOOLWA was hereunto
affixed this 22nd day of March 1993 in the presence of: |
} | |
|
[signed] | | |
|
| | |
|
Mayor | | |
|
[signed] | | |
|
| | |
|
District Clerk | | |
|
THE COMMON SEAL of BINALONG PTY LTD ( A.C.N. 007 620 439 ) was hereunto
affixed in the presence of: |
} | |
|
[signed] | | |
|
| | |
|
Director | | |
|
[signed] | | |
|
| | |
|
Director/Secretary | | |
THE BINALONG AREA—PLAN
THE PROPOSAL
This application is made pursuant to Section 51 of the Planning Act which is
properly made given the Section 50 declaration over Hindmarsh Island and the
bridge alignment site, and now that the EIS has been officially recognised.
The following Site Plan illustrates the general disposition of uses for the
subject land.
The application has drawn material from a large body of well-documented data
prepared on behalf of the applicant company by its consultants, government and
local government groups. The extensive documentation provided through the
initial planning application process, the draft EIS and Supplement
preparation, together with other specialist supporting reports requested by
the Department of Environment and Planning from time to time, remains the
relevant source documentation, except as refined by this particular Section 51
application detail.
It is not intended to describe the proposal in full detail given that this has
been previously addressed with the earlier planning application, the EIS,
Supplement and the Assessment Report. Nevertheless the following summary
describes the proposal which is comprehensively detailed with the enclosed
plans.
The application is for both land division and land use approvals for the whole
of the development project albeit that it has an estimated 10 – 15 year
development period.
The proposal is to enlarge the existing marina basin and associated facilities
wholly owned and operated by the applicant and to provide a unique waterfront
residential estate with lagoon waterways, creating an integrated development
with a diversity of features focussed around water. In addition the proposal
includes the construction of a bridge accessible from Brooking Street and the
Hindmarsh Island causeway.
Facilities proposed and included within the development will comprise the
following features:
• Construction
of a bridge linking Goolwa and Hindmarsh Island.
• 1,150 wet
berth moorings (including the 560 previously approved) within a marina basin
covering some 20 hectares.
• Dry stand
facilities for approximately 500 boats and/or trailers together with overflow
car parking.
• Long Term
trailer and parking facilities.
• Marine retail
and services.
• Commercial
service facilities associated with the servicing, maintenance, construction
and related activities typically associated with the boating requirements of a
commercial marina, including travel lifts, Marina administration, sales and
communication facilities.
• Educational
and information services related to marine services and the park system
associated with the Coorong.
• Retail
facilities to provide for the needs of the marina complex together with the
demands generated by tourists, residents of the development and the residents
of Hindmarsh Island.
• Car parking
and access roads within that commercial precinct and around the Marina basin.
• 164 new
allotments and residential dwellings grouped in a series of residential
apartment style buildings adjacent the marina basin. These dwellings will have
individual titles with encumbrances but will be constructed as part of the
overall design.
• 662
residential allotments with appropriate encumbrances within a unique lagoon
environment, (approximately 30 hectares of water), with the majority of
allotments being provided with absolute water frontage.
• 50 country
living estate allotments.
• A resort
village providing for a range of accommodation and recreation needs.
• Nursery and
bulk storage facility.
• Marina
construction and operations depot.
• Sewage
treatment works and water filtration plant and substantial woodlot.
• Tavern and
bottleshop.
• Convention
centre.
• Motel with
dining facilities.
• Caretaker
accommodation.
• Boat launching
ramps.
• Extensive
public reserves and landscaped buffer areas.
• Yacht club
facilities.
• Water
balancing tank.
• Helipad and
hanger.
• Fuel dock and
office.
• Water
circulation pump facilities.
• Tourist
observation lookout.
Development will be staged, however immediate commencement will involve;
— bridge design
and construction completed and opened for the 1991 summer;
— excavation of
portion of the marina basin extension adjacent the proposed commercial areas.
The fill being required for bridge approaches, excess fill to be used to
prepare hard stand — commercial and recreational areas;
— excavation of
first residential lagoon estate comprising 149 allotments for immediate sale;
— 31 additional
villa units and titles (17 included in earlier planning approval)
— establishment
of the Marina construction and operations depot prior to excavation works;
— construction
of retail shops and offices to accommodate the existing shops to be relocated
from the proposed marina administration services building and for letting;
— construction
of facilities for boat construction and services to enable existing activities
to be relocated to enable effective upgrade of the Marina administration
operations to be undertaken.
The following plans and details which are attached form part of this Section
51 Application.
LAND DIVISION PLANS
Pak Poy & Kneebone Pty. Ltd.
Job Number 88A 7091
sheets 1 to 21
BUILDING AND LAND USE PLANS
Walter Brooke & Associates Pty. Ltd.
Job
Number 86.1512A sheets 1 to 17
SEWERAGE TREATMENT WORKS
Pak Poy & Kneebone Pty. Ltd.
Job Number AFT 0172
sheet 1A
HINDMARSH ISLAND BRIDGE — PRELIMINARY DESIGN
Pak Poy & Kneebone Pty.
Ltd.
Job Number 89A 7049C — 03B
LANDSCAPE PLANS
Land Systems Pty. Ltd.
Site Plan, Plant species and
13 concept
sheets individually named
WOODLOT DETAIL
Land Energy Pty. Ltd.
Irrigation Management Services
Report
— August 1989.
Collectively the enclosed schedules and drawings detail the proposal for which
this development approval is now sought. As previously noted there is
considerable data provided within the supporting documentation held by the
applicant company previously supplied to the Department of Environment and
Planning.
STAGE I
|
RESIDENTIAL ALLOTMENTS |
DRAWING & SHEET NOS. |
| |
88A7091 1A, 2A |
|
336 – 344 |
11 |
|
345 – 380, 382 – 387, 399 – 418 |
10 |
|
797 – 817, 773 – 775, 779 – 781 784, 785, 787, 788, 793
– 796 |
7 & 10 |
|
765, 768, 769, 771, 772, 831 – 845 818 – 830, 25 – 38 |
6 |
|
RESERVES | |
|
381, 388, 917, 904 |
11 |
|
913, 906 |
6 |
|
900 (Part lagoon) |
7, 11 |
|
ROADS | |
|
"S" |
6, 7, 8, 9, 10, 16, 17, 18 |
|
"X" |
6, 7, 15, 16 |
|
"W" (Part front allots 25 – 38) |
6, 15 |
|
"Y" |
6, 7 |
|
"D" |
6, 7, 8, 9, 11, 12, 13, 14, 18, 20 |
|
"M" |
10, 11, 14 |
|
"N" |
11 |
|
"A" |
3, 4, 5, 20 |
|
NON RESIDENTIAL ALLOTMENTS | |
|
911, 289 |
5 |
|
901, 967, 968 |
3, 4 |
|
903 |
3 |
|
905, 302, 271 |
6, 7 |
|
900 (Lagoon Excavation Part) |
7, 11 |
|
901 (Marina Basin Part) |
6, 19, 20 |
|
BUILDINGS |
PLAN NO. |
|---|---|
|
14 Residential Apartments (Villas) |
86.1512A - P17 |
|
Sewage Treatment Works |
AFT 0172 - 01A |
|
Marina Construction & Operations Depot Buildings |
86.1512A - P10 |
|
Marina Construction & Operations Depot Buildings |
86.1512A - P11 |
|
Water Balancing Tank |
86.1512A - P12 |
|
Boat Brokerage, Sales & Storage |
86.1512A - P3 |
|
Dry Standing Control Building |
86.1512A - P13 |
|
Undercover Boat Storage & Locker |
86.1512A - P14 |
|
Marine Service & Boat Construction Facility |
86.1512A - P15 |
|
Marine Dry Stand Servicing & Fuel Dock |
86.1512A - P15 |
|
Marine Village (Stage I) - Shops |
86.1512A - P16 |
|
Carport - Staff Carparking |
86.1512A - P3 |
|
Woodlotting |
86.1512A - P1 |
|
Slipways |
86.1512A - P2 |
|
Bridge & Approach Roads |
89A7049C - 03 |
STAGE II
|
RESIDENTIAL ALLOTMENTS |
DRAWING & SHEET NOS |
| |
88A7091 1A, 2A |
|
762 – 764, 766, 767, 770 |
6 |
|
776 – 778, 782, 783, 786, 789 |
7 |
|
419 – 442, 455 – 501, 790 – 792 |
10 |
|
451 – 453 |
14 |
|
758 – 760 |
10 |
|
444 – 447, 449, 450 |
11 |
|
RESERVES | |
|
916, 761, 443, 454 |
10 |
|
448 |
11 |
|
914, 610 |
4 |
|
913, 610 |
6 |
|
900 (Part lagoon) |
10 |
|
ROADS | |
|
"O" |
10 |
|
"P" |
13 |
|
NON RESIDENTIAL ALLOTMENTS | |
|
902, 966 |
3, 4 |
|
976 (Heliport and Caretaker's Residence) |
3 |
|
BUILDINGS |
PLAN NO. |
|---|---|
|
Resort Village |
86.1512A - P7 |
|
Recreation Building |
86.1512A - P10 |
|
Caretaker's Residence |
86.1512A - P13 |
|
Heliport |
86.1512A - P12 |
|
Marine Village (Stage II) |
86.1512A - P2 |
|
Motel |
86.1512A - P6 |
|
Tavern Extensions & Convention Centre |
86.1512A - P5 |
|
Marine Retail Services |
86.1512A - P3 |
STAGE III
|
RESIDENTIAL ALLOTMENTS |
DRAWING & SHEET NOS |
| |
88A7091 1A, 2A |
|
160 – 171 |
20 |
|
39 – 69 |
6, 16 |
|
137 – 159, 159A |
19 |
|
RESERVES | |
|
909 |
20 |
|
906 |
16, 15 |
|
912 |
5 |
|
ROADS | |
|
"B" |
20 |
|
"W" (Balance from allot 38) |
16 |
|
"G", "E", "F" (Part to allot 136 frontage) |
19 |
|
NON RESIDENTIAL ALLOTMENTS | |
|
136 |
19 |
|
901 (Marina Basin Part) |
16 |
|
907 |
16 |
|
BUILDINGS |
PLAN NO. |
|---|---|
|
67 Residential Apartments (Villas) |
86.1512A - P17 |
|
Yacht Club |
86.1512A - P13 |
STAGE IV
|
RESIDENTIAL ALLOTMENTS |
DRAWING & SHEET NOS |
| |
88A7091 1A, 2A |
|
746 – 750 |
5 |
|
586, 588 – 609 |
9 |
|
585, 582, 587, 583, 584, 580, 502 – 538 |
10 |
|
321 – 324, 539 – 546, 551 – 564, 566 – 579 581, 335
– 329, 314 – 320 |
13 |
|
548 – 550, 325 – 328 |
14 |
|
751 – 754 |
9 |
|
755 – 757 |
10 |
|
975 |
14 |
|
RESERVES | |
|
547, 565 |
13 |
|
745, 915 |
9 |
|
900 (Part lagoon) |
13 |
|
ROADS | |
|
"Q" |
13 |
|
"R" |
9, 13 |
|
No specialised buildings are proposed in this stage. | |
STAGE V
|
RESIDENTIAL ALLOTMENTS |
DRAWING & SHEET NOS |
| |
88A7091 1A, 2A |
|
291 – 294, 303, 304, 288, 290, 295 – 301 308 – 313, 659
– 669, 636 – 657 |
13 |
|
267 – 269, 251 – 266, 272 – 287, 670 – 706 |
12 |
|
707 – 723, 725 – 743, 246 – 250, 846, 847 |
9 |
|
211 – 245, 848 – 863 |
8 |
|
864 – 874, 200 – 210 |
5 |
|
610 – 635 |
9 |
|
70 – 76 |
16 |
|
77 – 91 |
17 |
|
92 – 125 |
18 |
|
126 – 135 |
19 |
|
972 |
13 |
|
969 – 971 |
12 |
|
RESERVES | |
|
658 |
13 |
|
724, 744 |
9 |
|
900 (Part lagoon) |
9, 12, 13 |
|
ROADS | |
|
"E" |
9, 19 |
|
"F" |
18, 19 |
|
"H" |
9, 18 |
|
"U" |
18 |
|
"V" |
9, 18 |
|
"T" |
9 |
|
BUILDINGS |
PLAN NO. |
|---|---|
|
66 Residential Apartments (Villas) |
86.1512A - P17 |
STAGE VI
|
RESIDENTIAL ALLOTMENTS |
DRAWING & SHEETING NOS |
| |
88A7091 1A, 2A |
|
918 – 936, 940 – 944 |
12 |
|
937 – 939, 945 – 962, 964 – 966, 973, 974 |
13 |
|
ROADS | |
|
Serving Country Living Estate. |
12, 13 |
|
No specialised buildings are proposed in this stage. | |
MINOR ANCILLARY ITEMS TO MARINA USE
• Area lighting
• Security
fencing to hard stand and various compounds
• Signs -
Directional, on buildings and awning (illuminated)
• Navigation
aids / lights
• Radio
communication aerials
• Signal mast /
flagpole
• Boat lifting
gantry
• Shelter shed
and gazebos
• Recreational
equipment
• Shade cloth
covering nursery shade houses
• Pump sheds,
equipment sheds and motor enclosures not exceeding 6 square metres
• Fuel and water
storage tanks
• Satellite dish
receivers
• Weather
beacons, wind socks and monitoring apparatus
• Carparking in
designated areas
• Public
conveniences.
• Entry
statement.
This data has been assessed in considerable detail over the past years and in
particular during the EIS process. However they have not been included within
this document as part of the formal applications.
Whilst this Application is reasonably large in scale, it is imaginative and
environmentally sustainable. After years of intensive and comprehensive
planning and development, consultant study and negotiation it is appropriate
for final approval be given pursuant to Section 51. We request that separate
planning approval be given for each stage of the development so that we are
given total approval and can then proceed to apply for titles as each stage is
completed.
|
BINALONG PTY. LTD. |
[signed] |
MARCH 1990 |
