PLANNING AND ENVIRONMENT ACT 1987
SECTION 173 AGREEMENT
COLAC OTWAY SHIRE COUNCIL
- and -
in relation to
THIS AGREEMENT is made the day of 20[#]
COLAC OTWAY SHIRE COUNCIL of 2-6 Rae Street, Colac in the State of Victoria (the "Responsible Authority") and
[#] of [#] in the said State (the “Owner").
The Owner is the registered proprietor of the land known as [#] in the said State, being the land contained in Certificate of Title Volume [#] folio [#] and being more particularly described as Lot [#] on Plan of Subdivision [#] (the “Land”).
The Responsible Authority is responsible for the administration and enforcement of the Planning Scheme pursuant to the provisions of the Act.
The Responsible Authority issued planning permit number [#] on [#] allowing [X] generally in accordance with the endorsed plans (the “Permit”).
Condition [#] of the Permit proves as follows:
“[RECITE PERMIT CONDITION]”
This Agreement is entered into between the Responsible Authority and the Owner pursuant to section 173 of the Act in order to meet the requirements of condition [#] of the Permit and to achieve and advance the objectives of planning in Victoria.
The Land is subject to registered mortgage number [#] registered on [#] in favour of [#], which mortgagee, as evidenced by its consent on the attestation pages, consents to this Agreement.
IT IS AGREED AS FOLLOWS:
In this Agreement unless inconsistent with the context or subject matter:
1.1."Act" means the Planning and Environment Act 1987;
1.2."Agreement" means this Agreement and any agreement executed by the parties varying or expressed to be supplemental to this Agreement;
1.3."Land" means the land described in Recital ;
1.5.“Lot 2 Land” means the land marked ‘Lot 2’ on the Plan of Subdivision;]
1.6.“Mortgagee” means the person or persons registered or entitled from time to time to be registered by the Register of Titles as Mortgagee of the Land or any part of it;
1.7."Owner" means the person or persons registered or entitled from time to time to be registered by the Registrar of Titles as the proprietor or proprietors of an estate in fee simple of the Land or any part thereof, and includes a Mortgagee in possession;
1.8.“party or parties” means the Owner and the Responsible Authority under this Agreement as appropriate;
1.9.“Permit” means the planning permit issued by the Responsible Authority described in Recital R.3;
1.10.[“Plan of Subdivision” means the plan of subdivision to be registered at the Land Titles Office which is in accordance with the plan entitled [X], drawing number [X], revision [X] dated [X] as endorsed by the Responsible Authority under the Permit on [X]; ]
1.11."Planning Scheme" means the Colac Otway Planning Scheme and any successor instrument or other planning scheme which applies to the Land;
1.12."Responsible Authority" means Colac Otway Shire Council as the authority responsible for administering and enforcing the Planning Scheme and includes its agents, officers, employees, servants, workers and contractors and any subsequent person or body which is the responsible authority for the Planning Scheme; and
1.13."Tribunal" means the Victorian Civil and Administrative Tribunal or any successor tribunal, court, institution or body.
In the interpretation of this Agreement unless inconsistent with the context or subject matter:
1.15.A reference to a gender includes a reference to all other genders;
1.16.Words (including defined expressions) denoting persons will be deemed to include all trusts, bodies and associations, corporate or unincorporated, and vice versa;
1.17.A reference to a person includes a reference to a firm, corporation, association or other entity and their successors in law;
1.18.If a party consists of more than one person this Agreement binds them jointly and each of them severally;
1.19.A reference to a statute includes any statute amending, consolidating or replacing that statute and includes any subordinate instruments made under that statute;
1.20.The Recitals to this Agreement are and will be deemed to form part of this Agreement including any terms defined within the Recitals;
1.21.References to the parties will include their transferees, heirs, assigns, and liquidators, executors and legal personal representatives as the case may be;
1.22.Reference to a document or agreement includes reference to that document or agreement as changed, novated or replaced from time to time; and
1.23.Where a word or phrase is given a definite meaning in this Agreement, a part of speech or other grammatical form for that word or phrase has a corresponding meaning.
Specific Obligations of the Owner
[insert appropriate covenant as per permit]
Further Covenants of the Owner
The Owner warrants and covenants with the Responsible Authority that:
1.24.It is the registered proprietor (or entitled to be so) of the Land;
1.25.Save as shown in the certificate of title to the Land, there are no mortgages, liens, charges, easements or other encumbrances or any rights inherent in any person affecting the Land or any part thereof and not disclosed by the usual searches;
1.26.Neither the Land nor any part of it is subject to any right obtained by adverse possession or subject to any easements, rights or encumbrances mentioned in section 42 of the Transfer of Land Act 1958 (Vic);
1.27.It has not entered into any contract of sale or lease in respect of the Land or any part thereof which option, contract or lease is still subsisting;
1.28.It will not sell, transfer, dispose of, assign, mortgage or otherwise part with possession of the Land or any part thereof without first providing to its successors a copy of this Agreement;
1.29.It will within 28 days of written demand pay to the Responsible Authority the Responsible Authority’s reasonable costs (including legal costs) and expenses of and incidental to the preparation, execution and registration of this Agreement. To the extent that such costs and expenses constitute legal professional costs, the Responsible Authority may at its absolute discretion have these costs assessed by the Law Institute of Victoria and in that event the parties shall be bound the amount of that assessment, with any fee for obtaining such an assessment being borne equally by the Responsible Authority and the Owner. Such costs payable by the Owner shall include the costs and disbursements associated with the registration of this Agreement on the titles and the removal therefrom;
1.30.It will do all that is necessary to enable the Responsible Authority to make an application to the Registrar of Titles to make a recording of this Agreement on the Certificate of Title to the Land in accordance with Section 181 of the Act, including the signing of any further agreement, acknowledgment or other document; and
1.31.Until such time as this Agreement is registered on the certificate of title to the Land, the Owner shall ensure that successors in title will give effect to this Agreement, and do all acts and sign all documents which will require those successors to give effect to this Agreement, including executing a deed agreeing to be bound by the terms of this Agreement.
The parties to this Agreement shall do all things necessary (including signing any further agreement, acknowledgement or document) to give full effect to the terms of this Agreement and to enable the Responsible Authority to register this Agreement on the titles to the Land in accordance with the Act.
This Agreement may be amended only in accordance with the requirements of the Act.
No waiver by any party of any default in the strict and literal performance of or compliance with any provision, condition or requirement in this Agreement will be deemed to be a waiver of strict and literal performance of and compliance with any other provision, condition or requirement of this Agreement nor to be a waiver of or in any way release any party from compliance with any provision, condition or requirement in the future nor will any delay or omission of any party to exercise any right under this Agreement in any manner impair the exercise of such right accruing to it thereafter.
No Fettering of Powers of Responsible Authority
The parties acknowledge and agree that this Agreement does not fetter or restrict the power or discretion of the Responsible Authority to make any decision or impose any requirements or conditions in connection with the granting of any planning approval or certification of any plans of subdivision applicable to the Land or relating to any use or development of the Land.
All notices and other communications under this Agreement will be sent by prepaid mail, by hand delivery, email or by facsimile to the addresses of the parties as specified in this Agreement or to such other address or person as any party may specify by notice in writing to the other party or parties, and may be sent by an agent of the party sending the notice. Each notice or communication will be deemed to have been duly received:
1.32.not later than two business days after being deposited in the mail with postage prepaid;
1.33.when delivered by hand;
1.34.if sent by email upon production of a delivery confirmation report received by the sender which records the time the email was delivered unless the sender received a delivery failure notification; or
1.35.if sent by facsimile transmission upon completion of that transmission and production of a transmission report stating that the facsimile was sent to the addressee’s facsimile number.
Costs on Default
If the Owner defaults in the performance of any obligations under this Agreement it will pay to the Responsible Authority its reasonable costs of action taken to achieve compliance with this Agreement.
This Agreement will be governed by and construed in accordance with the law of the State of Victoria and each of the parties hereby submits to the jurisdiction of the Courts of the State of Victoria and the Victorian Civil and Administrative Tribunal.
Invalidity of any Clause
Notwithstanding anything to the contrary in this Agreement, if any provision of this Agreement will be invalid and not enforceable in accordance with its terms, all other provisions which are self-sustaining and capable of separate enforcement without regard to the invalid provisions and will be and continue to be valid and enforceable in accordance with those terms.
Agreement Binding on Successors of Owners
This Agreement will extend to and bind the Owner’s successors, assigns, administrators, transferees and legal personal representatives and the obligations imposed upon them shall also be binding on their successors, transferees, purchasers, mortgagees and assigns as if each of them had separately executed this Agreement.
In the case of each party that consists of more than one person (including in that expression any corporation) each of those persons covenants, agrees and declares that all of the covenants, agreements, declarations and consents contained in this Agreement and made and given by that party have been entered into, made and given and are binding upon that person both severally and also jointly with the other person or persons constituting that party.
This Agreement constitutes the entire agreement between the parties in connection with its subject matter and supersedes all previous Agreements or understandings between the parties in connection with its subject matter.
Commencement and Ending of Agreement
This Agreement shall commence on date that it bears.
This Agreement shall end by agreement between the parties or otherwise in accordance with the Act.
[If the Agreement should end with respect to part of the Land, clause 16 may read:
This Agreement shall end:
with respect to the Lot 1 Land, upon registration of the Plan of Subdivision; and
with respect to the Lot 2 Land, by agreement between the parties or otherwise in accordance with the Act. ]
EXECUTED AS A DEED
SIGNED SEALED AND DELIVERED by the said [#] in the presence of:
[Or insert appropriate sealing or execution clause if Owner is a company]
SIGNED SEALED AND DELIVERED on behalf of
Colac Otway Shire Council by General Manager,
Sustainable Planning and Development, pursuant to an instrument of delegation authorised by a Council resolution dated 27 March 2013 in the presence of:
(Signature of delegate)
(Witness name & signature)
[#] as Mortgagee under Instrument of Mortgage No. [#] consents to the Owner entering into this Agreement and agrees to be bound by the terms and conditions of this Agreement.
Executed for and on behalf of