HOUSTON DEARN O'CONNOR LAWYERS T.J. O'Connor, B.A., LL.B. Our Reference: S. E. Shneider, B.A., Dip Law (LPAB) TOC:JE:113139-450 Senior Associate Your Reference: C.A. Middleton, B.Comm LLM 7 November 2016 The General Manager Bayside Council DX 4108 MAROUBRA JUNCTION NSW Attention to: Catherine McMahon By Email: [email protected] Dear Madam BOTANY BAY CITY COUNCIL & PETER & CHRISTINE KOSTAS PLANNING AGREEMENT - 1153-1155 BOTANY ROAD, MASCOT We refer to your email of last Friday. The writer has obtained the file which was a matter which Mr Houston looked after. From perusing the file the Voluntary Planning Agreements were executed and a copy of the original held by us is attached. Although initially it appeared that the land had not been dedicated as a public road, Council subsequently found out that there was a re-alignment vested in Council on 1 July 1993 such that this was the formal lodgement of a plan to enable the separate block to be created. Interestingly Council is entitled to register a caveat over the title to the property if the Planning Agreement is not registered if the consents have not been obtained from the persons required. The only consent required here is the tenant. We also note that the request registration was sent to the owner' solicitors PT & W Law by Bert Houston on 16 June 2014 together with a copy of the plan for signing by the owner and tenant. We enclose a copy of the plan sent and survey. It was intended to then have the plan signed once returned signed by Council by the owner and his tenant. The return of these documents were pursued with the owner' solicitors on a number of occasions but were never returned. The file then slipped through the cracks when Mr Houston left the firm but the obligation has always been upon the owner to comply with the terms of the Deed. We have not been provided with any correspondence from Council whereupon it was said that Council would not lodge caveat over the title to the property so we are unsure as to where such an agreement was reached. If it was in July last year then nothing came back to us and it would have been inappropriate for the owner' solicitor to be dealing directly with P 0 Box 226 Suite 33, Level 5 Burwood NSW 1805 12 Railway Parade Tel: (02) 9744 9247 DX 8565 Burwood NSW 2134 Fax: (02) 9744 6739 Burwood Liability limited by a scheme approved under Professional Standards Legislation 1948 AJH:113139-450:1948 2 Council when they knew that we were involved in the matter having pursued Mr Tzannes for return of the signed document up to and including our letter of 25 March 2015. We recommend that if there is nothing binding upon the council regarding the lodgement of caveat, the caveat be lodged at this time over the title and we advise the owner' solicitor that has been done because of the failure to comply with the registration requirements. Not only does the VPA need to be registered over the title there is obligations to sign the linen plan such that the plan can be registered. From perusing the file there are also additional requirements when dealing with LPI which will have to be attended to because of the history of the road dedication. The writer does not propose going into those issues but will deal with them as and when compliance is met with the obligations imposed upon the owner of the land pursuant to the VPA. The suggestion that they will annex the Deed to any sale contract is not appropriate as it could not be enforced. The only way to ensure that happens is to have a caveat registered over the title so that any incoming purchaser is forewarned. We also fail to understand why a figure for costs was put directly to Council when again the owner's solicitor knew that Council was represented by Bert Houston and this firm. The writer will speak to Cathy McMahon about the matter to get confirmation of our instructions to lodge the caveat but we need to see what information is on the file regarding this alleged agreement in July of last year with Council's officer. We therefore suggest that we be instructed to, subject to looking at the alleged agreement first: 1. Lodge a caveat over the title to the property. 2. Write to the developer's solicitor requesting that the plan and request form be signed and returned to us with the name of the Council altered to Bayside Council and initialled by the parties signing their consent to the request form. If we do not receive an appropriate response then there is always the possibility of the Council threatening commencement of Court proceedings seeking to enforce the terms of the Voluntary Planning Agreement. Taking into account that the road has been already dedicated and this is to formalize it whereby the owner does get a benefit one would think that there would be no discretionary argument as to why the Court would not order that the owner comply with the obligations to have the plan registered over the title which then ultimately leads to, on submitting a statutory declaration to LPI, title then issuing to the Council. Please advise us in due course of our instructions. We have undertaken a title search which shows that Peter and Christine Kostas still own the property and the only affectation is the earlier identified lease. 3 We have subsequently been provided with the letter from PT & W. It was highly inappropriate for them to approach Council when they knew we were acting for Council and in any event it does not represent any agreement for 2 reasons. It is merely a request to make changes and incorrectly asks for the "final proposed deed" when the Deed was already executed by both parties. Also Mr Dowsett at that he had no authority to agree to an amended deed. We see no reason why we should not immediately be instructed to lodge the caveat. Yours faithfully HOtMON DEARN O'CONNOR Timothy O'Connor Encl. THIS DEED made the —3 ‘'Q+-- day of 2014 BETWEEN: THE COUNCIL OF THE CITY OF BOTANY BAY of 141 Coward Street, Mascot in the State of New South Wales ("the Council") of the first part AND: PETER KOSTAS and CHRISTINE KOSTAS both of 1161 Botany Road, Mascot in the said State ("the Owners") of the other part WHEREAS: A. The Owners are the current registered proprietors of the land known as 1153-1155 Botany Road, Mascot ("the Development Site") being the whole of the land contained in Folio Identifier A/29906. B. The rear boundary of the Development Site adjoins the public laneway known as Botany Lane, Mascot. C. By notification published in the Government Gazette of 31 October 1969 ("the Realignment Notice") pursuant to Section 262 of Part IX of the Local Government Act 1919 the Minister for Lands gave notice of the realignment of the boundaries of Botany Lane as shown on approved realignment plan M5-2626 deposited in the Department of Lands Sydney. D. The effect of the publication of the Realignment Notice was to extend the western boundary of Botany Lane a distance of 3.66 metres inside the Development Site across the whole of the rear portion of that site ("the realignment strip"). E. Part IX of the Local Government Act 1919 was repealed as from 1 July 1993 and from that date provisions concerning the widening of public roads have been contained in Division 2 of Part 3 of the Roads Act 1993 ("the Roads Act"). F. By virtue of the provisions of Division 2 of Part 3 and clause 16 of Schedule 2 of the roads Act the realignment strip the Council as road without need for MADocs\B5104\126510.doc 3.12.2013 2 further dedication as from 1 July 1993 and the Owners became entitled to compensation from Council in respect of Council's acquisition of the realignment strip. G. On 1 November 2007 the Owners lodged with Council Development Application 08/115 seeking development consent for alterations/additions to the existing building on the Development Site ("the Development Application"). H. On 28 February 2008 the Council received a letter dated 26 February 2008 from solicitors acting on behalf of the Owners, advising of the Owners preparedness to enter into a Planning Agreement with the Council in connection with the Development Application to provide for: (i) dedication by the Owners to the Council as road that part of the Development Site comprising the realignment strip; (ii) waiver by Council of a Section 94 Contribution in respect of the development the subject of the Development Application in lieu of payment of compensation in resect of the acquisition of the realignment strip; and (iii) Council permitting the Owners to continue to use the realignment strip until notification by the Council of its requirement to use it for road purposes, subject to the Owners maintaining the land comprising the realignment strip at their cost during such period of occupation. I. By Notice of Determination dated 12 March 2008 the Council advised the Owners of its consent to the Development Application subject to conditions set out therein ("the Development Consent"). Condition 2 of the Development Consent provides: "2. The applicant must, as per the Voluntary Planning Agreement at no cost or expense to Council dedicate the area designated for road widening at the rear of the site to a width of 3.6 MADocs\B5104\126510.doc 19.9 2013 3 J.