agenda - shellharbour council · 2021. 4. 19. · extraordinary council meeting – 20 april 2021...

SHELLHARBOUR CITY COUNCIL

Extraordinary Council Meeting – 20 April 2021 Business Paper

This is page of the Minutes of the Extraordinary Meeting of the Council of the City of Shellharbour held 20 April 2021

AGENDA

1. Acknowledgement to Country............................................................................ 2

2. Apologies / Leave of Absence............................................................................ 2

3. Confidential Business (Committee of the Whole) ............................................ 2

4. Declarations of Interest ...................................................................................... 3

5. Reports ................................................................................................................. 3

5.1 Draft Deed of Agreement - Lendlease - Calderwood Urban Development Area (11648606) ......................................................................................................................3

Recommendation ...........................................................................................................8




1. Acknowledgement to Country

Shellharbour City Council acknowledges the Traditional Owners and Custodians of the Land on which we are meeting and pays its respects to Elders past, present and emerging. Webcasting Statement

Pre-registered members of the public who address Council at the Addresses to Council Forum and those who attend Council Meetings should be aware that their image, and comments will be recorded, and broadcast live from Council's website. It should be noted that the Addresses to Council Forum is held prior to the Council Meeting from 4.30pm to 5.30pm. Council broadcasts live to enhance the accessibility of Council Meetings to the broader Shellharbour City Community. Recordings can be downloaded from Council's website for later viewing, or purchased from Council for viewing on a computer. For further information on Privacy, refer to the Public Gallery Conduct Standards displayed in the Chamber. Council accepts no responsibility for any defamatory or offensive statements. Members of the gallery should also refer to the Public Gallery Conduct Standards, for appropriate standards of behaviour during Council Meetings. Should Council need to consider confidential matters during a Council Meeting, invited members of the gallery may address the Council on the reasons why the meeting should not resolve into Committee of the Whole (Confidential Session). Please ensure that mobile phones and other electronic devices are turned off or are in silent mode for the duration of the meeting. In the event of an emergency, please evacuate the building using the nearest exit and follow the instructions given by the wardens. Do not use the lifts.

2. Apologies / Leave of Absence

3. Confidential Business (Committee of the Whole)




4. Declarations of Interest

Note: Councillors and staff who declare an Interest at the Council Meeting are also required to complete a Declaration of Interest form.

5. Reports

5.1 Draft Deed of Agreement - Lendlease - Calderwood Urban Development Area (11648606)

To the Chief Executive Officer Directorate: Community and Customers Group: City Planning Manager: Geoff Hoynes – Group Manager City Planning Author: Cheryl Lappin – Senior Strategic Planner

Summary The purpose of this report is to seek Council’s endorsement to enter into the Draft Deed of Agreement with Lendlease Communities (Australia) Limited regarding the necessary upgrade of Calderwood Road, Calderwood (Attachment 1).

Lendlease and the Council are entering into this binding and enforceable Deed of Agreement for the purposes of enabling a settled outcome in relation to the delivery of the Calderwood Road Upgrade. The Council and Lendlease agree that the Calderwood Road Upgrade as defined and attached to the Draft Deed of Agreement represents the works envisaged by Condition C12(d) in Part C of Schedule 2 of the Calderwood Urban Development Area Concept Plan Approval. The commitment of 100 percent provision of all costs associated with the Calderwood Road Upgrade by Lendlease prior to 2027 as specified in the Draft Deed, will enable Council to be satisfied that Condition C12(d) first dot point has been adequately addressed for all current and future Development Applications for any development in the Calderwood Urban Development Area.

Background On 8 December 2010, the Minister for Planning approved the Concept Plan for the development of the Calderwood Urban Development Project Area (Concept Plan Approval). The Concept Plan Approval was subsequently modified on 27 March 2018 and 6 March 2020. At the time of the approval it was envisaged that Lendlease would be the sole developer of the project, however a number of entities (non-core landowners) are now intending to develop the land in addition to Lendlease.




A condition of the Concept Approval (C12(d)) requires the Upgrade of Calderwood Road outside of the Project Area from the Eastern Boundary to the Tripoli Way Extension (including Mansons Bridge).

Condition C12(d) of the Concept Plan approval reads:

C12 Local Infrastructure Contributions

The requirements for local infrastructure shall be generally in accordance with the following principles:

d) Other Road Works –the following road works are needed to directly access to site and are therefore not to be included in the S94 framework. These will be required as per conditions of approval and the timing will be determined as part of future subdivision approval.

The upgrade of Calderwood Road from the site boundary to Tripoli Way extension (referred to in the TMAP as 32);

Construction of the internal north-south sub arterial road (referred to in the TMAP as 33,34, &35);

Upgrade of the intersection of the Illawarra Highway and Yellow Rock Road to provide site access (referred to in the TMAP as 37).

To date only Lendlease has received approval to develop and it has satisfied the second and third dot point of the condition as components of each relevant stage of its overall development. The Upgrade of Calderwood Road (first dot point) has been previously assessed as not needing to be delivered for a substantial period of time and has therefore not been required to be satisfactorily addressed as part of any approved applications.

Council is now in receipt of a number of Development Applications for the subdivision of non-core lands as well as Lendlease land. These applications if approved will have the potential to allow approximately 1000 dwellings in addition to the 1800 dwellings already approved.

Given the number of applications currently under consideration, the possible timing of these developments and the required timing of the delivery of the Calderwood Road Upgrade (2027), it is now considered necessary for all Development Applications for substantial development within the Calderwood Urban Development Area to adequately address dot point one of condition C12(d) of the Concept Plan Approval regarding the upgrade of Calderwood Road.

Subsequently, all proponents of any undetermined Development Applications for substantial development within the Calderwood Urban Development Area have been advised that their applications will not be determined until there is a satisfactory binding and enforceable agreement/commitment from a party or parties to undertake all that is necessary to satisfy condition C12(d) first dot point, regarding the upgrade of Calderwood Road.




Council is also currently a respondent in Class 1 Court Proceedings brought about by (Calderwood Heights) who submitted a Deemed Refusal Appeal in the Land and Environment Court. The proceedings relate to DA 0290/2018, which is seeking approval for a subdivision consisting of 455 residential lots, a District Park, a Local Park, Riparian Corridors and Drainage Reserves. There has been multiple Section 34 Conciliation Conferences coordinated by the Court and held between the proponent and the respondents to facilitate resolution of the many outstanding matters, which were contained in the respondent’s facts and contentions. Although many contentions have now been resolved or agreed to between the Parties, a number are still being assessed through the submission of amended plans and the matter of satisfactory compliance with Condition C12(d) remains. The hearing has been adjourned until the 14 May 2021 to enable the submission of amended plans and for further negotiation and resolution of certain matters including Condition C12(d) by way of a Council Resolution to enter into this Draft Deed of Agreement. It should be also be noted that Lendlease is a second respondent in the Calderwood Heights Court Proceedings. During the Court Conciliation process Council advised that it was of the opinion that Condition C12(d) could only be satisfied by the submission to Council of a legally binding and enforceable agreement by any Party that committed that Party to do all things necessary (including the cost of any land acquisitions) to construct the Upgrade of Calderwood Road as required in Condition C12(d) to the specification and timing deemed to be satisfactory by Council. It was also during the Court Conciliation process that Lendlease advised that it was seeking to negotiate a side deed arrangement with all non-core landowners with regard to a pro-rata payment to Lendlease. Lendlease would then be willing to commit, through an Amended VPA or other form of legally binding agreement with Council, to be the Party responsible for the delivery of the required Upgraded Road. As a result, much of the conciliation conferencing involved intensive negotiations between Council and Lendlease to come to agreed specifications and timing for the Upgrade. These matters have now been agreed and are attached to the Draft Deed of Agreement. Subject to Council resolution, Lendlease and the Council would enter into this binding and enforceable Deed of Agreement for the purposes of enabling a settled outcome in relation to the delivery of the Calderwood Road Upgrade. The Council and Lendlease would agree that the Calderwood Road Upgrade as defined and attached to the Draft Deed of Agreement represent the works envisaged by Condition C12(d) in Part C of Schedule 2 of the Concept Plan Approval. The agreed specifications and preliminary concept design plans have been the subject of extensive negotiation between Council staff and Lendlease during the Calderwood Heights Court Proceedings. The preliminary concept design plans contained in Annexure 1 of the Draft Deed are indicative only and are subject to change prior to any necessary approvals or consents required to be obtained to allow the works to be undertaken. In this regard, Lendlease will be responsible for preparing final detailed design plans to the satisfaction of Council.




It will also be required to obtain planning approval under the EP&A Act as well as approval under the Roads Act 1993. There are also detailed security requirements specified in the Draft Deed to ensure that adequate Bank Guarantees are submitted to Council to cover any costs to do the works in the event that the Deed is not honoured. In addition to the actual construction works required for the upgrade of Calderwood Road, there is also additional privately owned land identified as potentially being required for the upgraded road reservation and realigned Manson’s Bridge. This land will need to be acquired by either Lendlease (in the first instance) or Council (by either private treaty or using the compulsory acquisition process) with all costs being met by Lendlease. It is also clearly articulated in the Draft Deed that Council is under no obligation to acquire some or all of the acquisition land, but it may choose to do so at absolute discretion. In addition, if after a period of time Lendlease has been unable to acquire the land and Council has also not acquired the acquisition land then the parties have agreed to review and revise the scope of the Calderwood Road Upgrade and negotiate with each other in good faith so that the Calderwood Road Upgrade is further amended or refined so that the acquisition of the relevant Acquisition Land is no longer required. The Draft Deed also specifies all timing and security associated with this arrangement. Lendlease has also indicated that within six months from the commencement of the Deed it will seek to amend its existing Voluntary Planning Agreement (VPA) with Council. The amendment is to reflect the obligations set out in this binding and enforceable Deed of Agreement as well as any further amendments necessary to exclude any development contributions (including works, land dedication and monetary contributions) for which any non-core landowners have entered into binding VPA’s with Council and which have come into force. Never the less it is critical that this Deed of Agreement is drafted as a standalone Agreement that can be enforced in the absence of any relevant amendment to the existing Lendlease VPA. Council received a briefing on the Deed of Agreement on 13 April 2021. Financial / Resources Implications If approved, this Draft Deed of Agreement would be for the provision of substantial road works and acquisition of land by a third party (Lendlease) as required by a condition of Concept Plan Approval. All costs associated with the necessary Upgrade are proposed to be met by Lendlease. However, security in the form of adequate Bank Guarantees are required by this Deed of Agreement prior to commencement of the Upgrade Works as well as any land acquisitions (by Council) to address financial risk to Council. Legal and Policy implications

The Draft Deed of Agreement is being put to Council because the commitment by Lendlease to undertake and pay for the agreed extent of works and land acquisitions (in order to satisfy Condition C12(d) of the Concept Plan Approval) is substantial and requires a Council resolution to enter into the Deed and also to affix the Seal of Council.




The Department of Local Government issued a Circular on 10 December 1996 advising that a Council Seal can be affixed to a document only after the Council has resolved that the Seal be affixed. The resolution must specifically refer to the document and the document must relate to the Council business. The power to authorise the affixing of the Seal can only be exercised by the Council. It cannot be delegated to a committee or employee (Section 377 of the Local Government Act, 1993, as amended). This is a requirement of the Local Government (General) Regulation, 2005. Public / Social Impact Lendlease and the Council are entering into this binding and enforceable Deed of Agreement for the purposes of enabling a settled outcome in relation to the delivery of the Calderwood Road Upgrade. The Calderwood Road Upgrade as defined and attached to the Draft Deed of Agreement represents the works envisaged by Condition C12(d) in Part C of Schedule 2 of the Concept Plan Approval. The commitment of 100 percent provision of all costs associated with the Calderwood Road Upgrade by Lendlease prior to 2027 as specified in the Draft Deed will enable Council to be satisfied that Condition C12(d) first dot point has been adequately addressed for all current and future Development Applications for any development in the Calderwood Urban Development Area. The proposed upgrade of Calderwood Road is a significant infrastructure project which may potentially impact the residents and landowners adjacent to any future works. Consultation with affected property owners will be an important component of the process of developing detailed design plans for the necessary upgrade of Calderwood Road. Community consultation is likely to be a collaboration between Lendlease and Council as in accordance with the Draft Deed Lendlease will be designing and building the upgraded road. In the interim consultation with landowners adjacent to the affected area of Calderwood Road will commence with a notification advising them that arrangements have been put in place for the delivery of the upgrade to Calderwood Road as required by the Concept Approval in the form of this Draft Deed and inviting feedback or comment for consideration when the detailed design process commences. Link to Community Strategic Plan This report supports the following objectives and strategies of the Community Strategic Plan:

Objective: 3.1 Infrastructure is planned and managed in a way that meets the community's needs

Strategy: 3.1.1 Provide the community with a broad range of quality infrastructure, assets and facilities delivered in a cost-effective and sustainable manner




Objective: 4.2 Supported by a Council that is responsive, accountable and financially viable Strategy: 4.2.1 Undertake Council activities within a clear framework of strategic planning, policies, procedures and services standards

Consultations Internal

Group Manager Built and Natural Environment Group Manager City Development Team Leader – Urban Release Manager - Planning External Lendlease Communities (Australia) Ltd Addisons (Lawyers for Lendlease) Marsdens Law Group (Lawyers for Shellharbour City Council) Political Donations Disclosure Not Applicable

Recommendation

That: 1. Council enter into the Deed of Agreement (Attachment 1) with Lendlease

Communities (Australia) Ltd. 2. the Mayor, Chief Executive Officer, or their nominated delegates, be

authorised to sign any associated documentation, including affixing the Seal of Council.

3. Council delegate to the Chief Executive Officer the ability to make minor non-

material amendments to the documents associated with the Deed of Agreement.

End Section




Approved for Council's consideration:

Date of Meeting: 20 April 2021

Extraordinary Council Meeting

Attachments

1. Draft Deed of Agreement between Shellharbour City Council and LendleaseCommunities (Australia) Ltd – Page 10

Geoff HoynesGroup Manager City Planning




Attachment 1 – Draft Deed of Agreement between Shellharbour City Council and Lendlease Communities (Australia) Ltd

agenda - shellharbour council · 2021. 4. 19. · extraordinary council meeting – 20 april 2021...

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