COB-RGB

 

 

 

 

 

Council  Agenda

 

 

 

24 September 2014

 

 

 

 

 

ALL INFORMATION AVAILABLE IN VARIOUS FORMATS ON REQUEST

 

 

 


CITY OF BUSSELTON

MEETING NOTICE AND AGENDA – 24 September 2014

 

 

 

TO:                  THE MAYOR AND COUNCILLORS

 

 

NOTICE is given that a meeting of the Council  will be held in the the Council Chambers, Administration Building, Southern Drive, Busselton on Wednesday, 24 September 2014, commencing at 5.30pm.

 

Your attendance is respectfully requested.

 

 

 

 

 

 

paul needham

 

A/CHIEF EXECUTIVE OFFICER

 

12 September 2014


CITY OF BUSSELTON

Agenda FOR THE Council  MEETING TO BE HELD ON 24 September 2014

TABLE OF CONTENTS

 

ITEM NO.                                        SUBJECT                                                                                                                              PAGE NO.

1....... Declaration of Opening and Announcement of Visitors. 5

2....... Attendance. 5

Apologies. 5

Approved Leave of Absence. 5

3....... Prayer. 5

4....... Public Question Time. 5

Response to Previous Questions Taken on Notice. 5

Public Question Time. 5

5....... Announcements Without Discussion.. 5

Announcements by the Presiding Member. 5

Announcements by other Members at the invitation of the Presiding Member. 5

6....... Application for Leave of Absence. 5

7....... Petitions and Presentations. 5

8....... Disclosure Of Interests. 5

9....... Confirmation and Receipt Of Minutes. 5

Previous Council Meetings. 5

9.1          Minutes of the Council  held on 27 August 2014. 5

Committee Meetings. 5

9.2          Minutes of a meeting of the Meelup Regional Park Management Committee held on 12 August 2014. 5

9.3          Minutes of a meeting of the Policy and Legislation Committee held on 21 August 2014. 6

10..... Reports of Committee. 7

10.1        Meelup Regional Park Management Committee - 12/08/2014 - APPOINTMENT OF REPLACEMENT MEMBERS - MEELUP REGIONAL PARK MANAGEMENT COMMITTEE. 7

10.2        Policy and Legislation Committee - 21/08/2014 - THOROUGHFARES AND TRADING IN PUBLIC PLACES LOCAL LAW... 12

10.3        Policy and Legislation Committee - 21/08/2014 - REVIEW OF DELEGATIONS TO CHIEF EXECUTIVE OFFICER, OTHER OFFICERS AND COMMITTEES. 52

10.4        Finance Committee - 4/09/2014 - REVIEW OF COUNCIL POLICY – INVESTMENTS (218). 90

10.5        Finance Committee - 4/09/2014 - FINANCIAL ACTIVITY STATEMENTS – PERIOD ENDING 31 JULY 2014. 104

10.6        Finance Committee - 4/09/2014 - LIST OF PAYMENTS MADE – JULY 2014. 123


 

10.7        Finance Committee - 4/09/2014 - PROPOSAL TO AMEND THE BUDGET – RAILS-TO-TRAILS (WADANDI TRACK). 150

10.8        Airport Advisory Committee - 1/09/2014 - BUSSELTON REGIONAL AIRPORT - PROPOSAL FOR HELICOPTER PARKING AREA.. 159

10.9        Airport Advisory Committee - 1/09/2014 - WATER CORPORATION LAND EXCHANGE AND SALE CONTRACT - RUNWAY EXTENSION BUSSELTON REGIONAL AIRPORT. 164

11..... Planning and Development Services Report. 173

11.1        RESERVE 22965 GEOGRAPHE BAY ROAD, DUNSBOROUGH – PROPOSAL TO CHANGE THE PURPOSE OF THE RESERVE FROM ‘CAMPING AND RECREATION’ TO ‘RECREATION AND FORESHORE MANAGEMENT’ 173

11.2        MANAGEMENT OF DOGS IN PUBLIC PLACES, INCLUDING BEACHES. 177

12..... Engineering and Work Services Report. 273

12.1        PEDESTRIAN ACCESS WAY (PAW) BETWEEN ANTHONY ROAD AND DAVID DRIVE, GEOGRAPHE. 273

12.2        AWARD OF RFT 11/14 PROVISION OF CLEANING SERVICES OF CITY OWNED BUILDINGS. 309

12.3        AWARD OF TENDER RFT10/14 – BARNARD PARK OVAL REDEVELOPMENT – SUPPLY & INSTALLATION OF SPORTS OVAL LIGHTING.. 316

13..... Community and Commercial Services Report. 321

13.1        COMMUNITY SPORT & RECREATION FACILITIES FUND – ANNUAL AND FORWARD GRANT ROUND APPLICATIONS – 2015/16 – 2017/18 TRIENNIUM... 321

13.2        RETAIL TRADING HOURS REVIEW... 380

14..... Finance and Corporate Services Report. 441

14.1        LOCKE ESTATE - REQUEST FOR EXTENSION OF TIME. 441

15..... Chief Executive Officer's Report. 446

15.1        COUNCILLORS' INFORMATION BULLETIN.. 446

16..... Motions of which Previous Notice has been Given.. 456

Nil

17..... Confidential Reports. 456

Nil

18..... Questions from Members. 456

19..... Public Question Time. 456

20..... Next Meeting Date. 456

21..... Closure. 456

 


Council                                                                                      5                                                           24 September 2014

 

1.               Declaration of Opening and Announcement of Visitors

2.               Attendance 

Apologies

 

Nil

Approved Leave of Absence

 

Nil

3.               Prayer

4.               Public Question Time

Response to Previous Questions Taken on Notice 

Public Question Time

5.               Announcements Without Discussion

Announcements by the Presiding Member 

Announcements by other Members at the invitation of the Presiding Member

6.               Application for Leave of Absence

7.               Petitions and Presentations 

Petition relating to the proposal to reopen the laneway between Anthony Road and David Drive

8.               Disclosure Of Interests

9.               Confirmation and Receipt Of Minutes 

Previous Council Meetings

9.1             Minutes of the Council  held on 27 August 2014

Recommendation

That the Minutes of the Council  Meeting held 27 August 2014 be confirmed as a true and correct record.

 


 

Committee Meetings

9.2             Minutes of a meeting of the Meelup Regional Park Management Committee held on 12 August 2014

 

RECOMMENDATION

 

1)         That the minutes of a meeting of the Meelup Regional Park Management Committee      held on 12 August 2014 be received.

2)         That the Council notes the outcomes of the Meelup Regional Park Management Committee meeting held on 12 August 2014 being:

a)            The Committee agreed to monitor the Gourmet Beach BBQ 2014 event, pre,        during and post event and will prepare a report to be forwarded to the                          Council. The Committee also recommended a number of specific conditions   to impose on the event organisers and expressed their reservations about            the event again being held at Castle Bay beach.  The Committee also wanted Council to be advised that recommendations relating to the use of Castle Bay beach were made without reference to the Committee and without advice of the Committee’s strong reservations and other matters.  The Committee recommended some bond and contribution requirements.

b)           The Appointment of Replacement Members - Meelup Regional Park Management Committee Item is presented for Council consideration at Item 10.1 of this agenda.

c)            The Committee noted the Environment Officer’s report.

 

 

 

 

9.3             Minutes of a meeting of the Policy and Legislation Committee held on 21 August 2014

 

RECOMMENDATION

 

1)         That the minutes of a meeting of the Policy and Legislation Committee held on 21             August 2014 be received.

2)         That the Council notes the outcomes of the Policy and Legislation Committee      meeting held  on 21 August 2014 being:

             a)            The Thoroughfares and Trading in Public Places Local Law Item is                                            presented for Council consideration at Item 10.2 of this agenda.

             b)            The Review of Delegations to Chief Executive Officer, Other                                                       Officers and Committees Item is presented for Council consideration at Item                        10.3 of this agenda.

 

 

 


Council                                                                                      7                                                           24 September 2014

10.             Reports of Committee

10.1           Meelup Regional Park Management Committee - 12/08/2014 - APPOINTMENT OF REPLACEMENT MEMBERS - MEELUP REGIONAL PARK MANAGEMENT COMMITTEE

SUBJECT INDEX:

Committee Meetings

STRATEGIC OBJECTIVE:

A Council that engages broadly and proactively with the community.

BUSINESS UNIT:

Environmental Services

ACTIVITY UNIT:

Meelup Regional Park

REPORTING OFFICER:

Acting Director, Planning and Development Services - Greg Simpson

AUTHORISING OFFICER:

Director, Planning and Development Services - Paul Needham

VOTING REQUIREMENT:

Absolute Majority

ATTACHMENTS:

Attachment a   Meelup Regional Park Management Committee – Terms of Reference  

 

This item was considered by the Meelup Regional Park Management Committee at its meeting on 12 August 2014, the recommendations from which have been included in this report. 

 

PRÉCIS

 

This report recommends the appointment of one new member to fill a community member vacancy and the appointment of two additional deputy members for the Meelup Regional Park Committee.

 

 

BACKGROUND

 

On 9 October 2013, Council resolved (resolution C1310/267) as part of the review process for Council appointed committee’s to re-establish the Meelup Regional Park Management Committee in accordance with the terms of reference, a copy of which is included as Attachment 1.

 

On 21st October 2013, Council resolved to appoint the Meelup Regional Park Management Committee. This Committee operates with nine members. Two of the members are Councillors, one City of Busselton officer and six community members. Deputy members may be appointed as required.

 

At the February 2014, committee meeting the Presiding Member acknowledged the resignation of Mr Andrew Cohen and the minutes from this meeting were received by Council (resolution C1403/046) at its Ordinary Meeting 12 March 2014.

 

STATUTORY ENVIRONMENT

 

The membership and deputy membership of Committees of Council must be determined by the Council in accordance with Section 5.10 and 5.11A of the Local Government Act 1995. In this regard, an Absolute Majority decision of the Council is required to appoint a person as a member or deputy member of a Committee.

 

RELEVANT PLANS AND POLICIES

 

N/A

 

FINANCIAL IMPLICATIONS

 

NIL

 

 

 

STRATEGIC COMMUNITY OBJECTIVES

 

This matter is considered relevant to Key Goal Area 6 - Open and collaborative leadership and Strategic Objective 6.1 ‐ A Council that engages broadly and proactively with its community. A Council that engages with its community through Committees with specific areas of interest that assist the Council to undertake its role.

 

RISK ASSESSMENT

 

An assessment of the potential implication of implementing the officer recommendation has been undertaken using the City’s risk assessment framework. The assessment sought to identify ‘downside’ risks only rather than ‘upside’ risks and where the risk, following implementation of controls has been identified, is medium or greater. No such risks were identified.

 

CONSULTATION

 

The Committee positions were advertised under the authority of the Management Committee in March 2013. The Committee considered the applications that were received and recommended the appointment of two members and four deputy members. Mr Matt Slocomb was recommended for appointment as one of the Committees deputy members.

 

OFFICER COMMENT

 

A nomination has been received for the appointment of Mr Matt Slocomb as a community member on the Meelup Regional Park Management Committee.  Mr Slocomb is currently appointed as a deputy community member.  Ms Jasmine Campbell and Mr Robert Ginbey have been nominated for appointment as additional Deputy Members.

 

CONCLUSION

 

In order to continue the valuable contribution to the City made by the Meelup Regional Park Management Committee, it is considered that the Committee should be returned to its full capacity and provided with deputies.

 

OPTIONS

 

The Committee may choose to review the applications and recommend to Council, different members for appointment to the Committee.

 

TIMELINE FOR IMPLEMENTATION OF OFFICER RECOMMENDATION

 

The Officer recommendation will be implemented by 30 August 2014.

 

COMMITTEE RECOMMENDATION AND OFFICER RECOMMENDATION

ABSOLUTE MAJORITY DECISION OF COUNCIL REQUIRED

That the Council:

 

1.    Appoints Mr Matt Slocomb as a member of the Meelup Regional Park Management Committee.

 

2.    Appoints Ms Jasmine Campbell and Mr Robert Ginbey as deputy members of the Meelup Regional Park Committee.

 


Council

9

24 September 2014

10.1

Attachment a

Meelup Regional Park Management Committee – Terms of Reference

 

MEELUP REGIONAL PARK MANAGEMENT COMMITTEE

 

* Proposed for re-establishment on 9 October, 2013.

 

Terms of Reference

 

1.            Introduction

 

The Council of the City of Busselton establishes a Meelup Regional Park Management

Committee under the powers given in Section 5.8, 5.9(2)(c) and 5.17(1)(c) of the Local

Government Act 1995.

 

The Council appoints to the Committee those persons whose names (shall) appear in section

4.0 below. Membership of the Committee shall, unless otherwise specified, be for a term

ceasing on 17 October, 2015, after which time the Council may appoint members for a

further term.

 

The Committee shall act for and on behalf of Council in accordance with provisions of the

Local Government Act 1995, local laws and policies of the City of Busselton and this

document.

 

2.0          Name

 

The name of the Committee shall be the Meelup Regional Park Management Committee.

 

3.0          Objectives

 

3.1          To develop a strategic plan for the regional park that ties into Council’s Strategic Plan,

to be endorsed by Council, and to annually review the five-year plan of capital and

operating expenditure and income, to be endorsed by Council.

 

3.2          Care for, control and manage all areas of Meelup Regional Park (except any areas

specifically excluded by Council).

 

4.0          Membership

 

2 Elected Members shall be appointed to the Committee

 

Councillor

Councillor

 

1 Deputy elected member shall be appointed for the Committee

 

Councillor

 

The CEO or his appointed delegate shall be appointed to the Committee

Delegate –

 

6 Community Members shall be appointed to the Committee

 

 

Deputy Members may be appointed as required

 

Other persons (or representatives of organisations) may participate in meetings of the

Committee (or any sub committees the Committee may establish) as determined by an

ordinary majority of the Committee. Such persons will not be entitled to vote on any matter

brought before the Committee.

 

5.0          Presiding Member

 

The Committee shall appoint a Presiding Member and Deputy Presiding Member to conduct

its business. The Presiding Member shall ensure that minutes of the proceedings are kept

and that business is conducted in accordance with the Shire of Busselton Standing Orders

Local Law.

 

6.0          Meetings

 

The Committee shall meet at least four times annually, and shall report to Council twice a

year as a minimum.

 

6.1          Notice of meetings shall be given to members at least 3 days prior to each meeting.

 

6.2          If any member is absent from 3 consecutive meetings without leave of the Committee,

they shall forfeit their position on such Committee. The Council shall be informed,

who will appoint a replacement for the balance of the Committee’s term of

appointment.

 

6.3          The Presiding Member shall ensure that detailed minutes of all meetings are kept in

accordance with the Shire of Busselton Standing Orders Local Law.

 

6.4          All members of the Committee shall have one vote. If the vote of the members

present is equally divided, the person presiding shall cast a second vote.

 

7.0          Quorum

 

Quorum for a meeting shall be at least 50% of the number of offices, whether vacant or not.

A decision of the Committee does not have effect unless it has been made by a simple

majority.

 

8.0          Delegated Powers

 

The Meelup Regional Park Management Committee is delegated authority to:

 

Exercise the powers and discharge the duties of the local government under Section 3.54(1)

of the Local Government Act 1995 as they relate specifically to Meelup Regional Park, in

accordance with the City's Strategic Plan, Park's management plan and Council's budget,

with the exceptions that:

a)    normal maintenance and servicing (eg. building maintenance and operations,

maintenance of grassed areas and surrounds, rubbish removal, etc) of the coastal

 

 

foreshore recreation areas at the localities of Eagle Bay, Meelup Beach and Castle

Rock are to be undertaken by the City; and

b)    all law enforcement (eg bush fire control, litter control, etc) is to be exercised by the

City's Ranger and Fire Services.

 

9.0          Conditions

 

As identified in the delegation (above).

 

10.0       Termination of Committee

 

Termination of the Committee shall be:

 

a)            In accordance with the Local Government Act 1995; and

b)            At the direction of Council, not exceeding 17 October, 2015.

 

11.0       Amendment to the Terms of Reference

 

This document may be altered at any time by the Council.

 

12.0       Committee Recommendations/Decisions

 

Committee recommendations shall not be binding on Council and must be endorsed by

Council to take effect. Decisions made under delegated authority shall not be binding on

Council if such decisions are in conflict with the delegated powers.

 

 

History

 

9 October, 2013

 

12 October, 2011

C1110/315

 


Council                                                                                      13                                                         24 September 2014

10.2           Policy and Legislation Committee - 21/08/2014 - THOROUGHFARES AND TRADING IN PUBLIC PLACES LOCAL LAW

SUBJECT INDEX:

Local Laws

STRATEGIC OBJECTIVE:

Governance systems that deliver responsible, ethical and accountable decision-making.

BUSINESS UNIT:

Corporate Services

ACTIVITY UNIT:

Legal Services

REPORTING OFFICER:

Legal Officer - Briony McGinty

AUTHORISING OFFICER:

Director, Finance and Corporate Services - Matthew Smith

VOTING REQUIREMENT:

Simple Majority

ATTACHMENTS:

Attachment a   Activities in Thoroughfares and Public Places and Trading Local Law 2014  

 

This item was considered by the Policy and Legislation Committee at its meeting on 21 August 2014, the recommendations from which have been included in this report. 

 

PRÉCIS

 

Under the Local Government Act 1995 (the Act) local governments are required to carry out periodic reviews of their local laws to determine whether they should be repealed or amended. As part of the City’s ongoing review of its local laws, the need for an updated local law dealing specifically with thoroughfares and trading in public places has been identified. It is recommended that Council repeal several current local laws dealing with a variety of subject matter and adopt the new, comprehensive Activities in Thoroughfares and Public Places and Trading Local Law 2014 (proposed local law).

 

The proposed local law has been prepared for consideration by Council to initiate the law-making process under the Act.

 

 

BACKGROUND

 

The City currently implements a number of local laws covering various activities that take place on thoroughfares and in public places. The following local laws will be repealed by the proposed local law:

 

a)         Bylaws relating to the Depositing and Removal of Refuse, Rubbish, Litter and Disused  Materials 1978

b)        Bylaw relating to Street Lawns and Gardens 1994

c)         Bylaw relating to Removal and Disposal of Obstructing Animals or Vehicles 1977

d)        Building By-laws – Numbering of Houses 1955

e)        Bylaws relating to Trading in Public Places 1992

f)         Bylaw relating to Eating Areas in Streets and other Public Places 1994

g)         Local Law Relating to Signs and other Advertising Devices 2004 (current local laws).

 

The Western Australian Local Government Association (WALGA) provides assistance to local governments in the implementation of local laws by creating “model” local laws. These model local laws provide a starting point in which to develop local laws suitable to the locality of the local government whilst ensuring that local laws across the state are generally similar when dealing with a particular subject matter. A number of current local laws are outdated in that they are inconsistent with the WALGA model.

 

For instance, some of the current local laws provide for fees and charges to be determined under the local law which in effect means these fees and charges can only be adjusted by way of an amendment to the local law. The current practice is for fees and charges rather to be imposed and determined under sections 6.16-6.19 of the Act, which enables the Council to review these fees and charges annually as part of the budget process.  Many of the current local laws also provide inadequate penalties.

 

Some current local laws also cover subject matter which has been superseded by State legislation or use terminology which is inconsistent with current legislation (for example, reference is made to “Town Planning Schemes” rather than “local planning schemes”, the “Health Act 1911” rather than the “Food Act 2008”, and “Shire Clerk” rather than “CEO”).

 

The proposed local law is based on the WALGA “Activities in Thoroughfares and Public Places and Trading” model local law which has been successfully implemented across most districts throughout the State.

 

STATUTORY ENVIRONMENT

 

Section 3.5 of the Act provides the heads of power for the Council to make the proposed local law:

 

“A local government may make Local Laws under this Act prescribing all matters that are required or permitted to be prescribed by a local law, or are necessary or convenient to be so prescribed, for it to perform any of its functions under this Act”.

 

The procedure for making local laws is set out in section 3.12 of the Act and regulation 3 of the Local Government (Functions and General) Regulations 1996.The person presiding at a council meeting is to give notice of the purpose and effect of a proposed local law by ensuring that —

(a)              the purpose and effect of the proposed local law is included in the agenda for that meeting; and

(b)             the minutes of the meeting of the council include the purpose and effect of the proposed local law.

 

The purpose and effect of the proposed local law is as follows:

 

Purpose: To consolidate and make one law relating to activities in thoroughfares and trading in thoroughfares and public places.

 

Effect: Some activities are prohibited and some activities are permitted only under permit on thoroughfares and public places.

 

As part of the statutory consultation process, the proposed local law is advertised in accordance with section 3.12(3) of the Act, by giving state wide public notice of the local law and allowing at least six weeks for the public to make submissions.  A copy of the local law is also provided to the Minister for Local Government.

 

Following this process, the proposed local law will then be referred back to the Council for consideration of any submissions received in relation to the local law and for the Council to resolve whether or not to make the local law by absolute majority decision.

 

Joint Standing Committee

 

Section 42 of the Interpretation Act 1984 allows the WA State Parliament to disallow a local law, which is a mechanism to guard against the making of subsidiary legislation that is not authorised or contemplated by the empowering enactment, has an adverse effect on existing rights or ousts or modifies the rules of fairness. Parliament has appointed the Joint Standing Committee on Delegated Legislation (JSC), to undertake an overseeing role on its behalf, which includes the power to scrutinise and recommend the disallowance of local laws to the Parliament. The JSC may potentially have concerns with the proposed local law but, as a result of its terms of reference, cannot consider local laws prior to their publication in the Government Gazette.

 

National Competition Policy

 

Since the early 1990’s State, Territory and Commonwealth Heads of Government through the Council of Australian Governments (COAG) initiated a commitment to achieving a nationally consistent approach to competition policy in Australia. This resulted in the adoption of the National Competition Policy (NCP) which requires, among other things, that local governments ensure that all new local laws which restrict competition are consistent with the following requirements:

 

·          The benefits of the restriction to the community as a whole outweigh the costs; and

·          The objectives of the local laws can only be achieved by restricting competition.

 

However in accordance with the National Competition Local Law Review Guidelines local governments are not required to do an assessment against the NCP of a local law based on a WALGA model local law and adopted by Council without substantial change. As the proposed local law is based on the WALGA model Activities in Thoroughfares and Public Places and Trading Local Law an assessment against the NCP is therefore not required.

 

RELEVANT PLANS AND POLICIES

 

The proposed local law is considered to be consistent with the following Council policies:

 

Markets Policy requiring licensing under the Trading in Public Places local law (will need amendment to refer to the proposed local law);

 

Trading in Public Places- Standard Conditions of Approval detailing standard conditions applicable to permits to conduct trading in public places (will need amendment to refer to the proposed local law). Modifications currently being proposed to the policy would also fit within the permit framework of the proposed local law;

 

Nature Verges for Urban Areas whereby the City will provide a WA native street tree provided the owner submits an approved landscaping plan showing the planting of other low-growing waterwise WA native shrubs within the urban “nature verge”;

 

Crossovers specifying a minimum width and referring to the technical specifications for crossover standards;

 

The proposed local law may necessitate some slight amendments to the following:

 

Technical Specifications will need to be amended to provide for a maximum width for a crossover as this is the standard as per the local law. 7m is the proposed maximum width (unless with Council approval);

 

FINANCIAL IMPLICATIONS

 

Costs associated with the advertising and gazettal of the local law will come from the legal budget. These costs are unlikely to exceed $2,000 and there are sufficient funds in the legal budget for this purpose.

 

STRATEGIC COMMUNITY OBJECTIVES

 

The proposal aligns with the City of Busselton Strategic Community Plan 2013 as follows:

6.1 Governance systems that deliver responsible, ethical and accountable decision making.

 

RISK ASSESSMENT

 

The proposed local law does not involve major departures from current practices and is therefore considered low risk.

 

CONSULTATION

 

If the Council resolves to initiate the local law-making procedure, the City is required by the Act to place notices in The West Australian newspaper, locally circulating newspapers and on City notice boards, containing details of the proposed local law and an invitation to the public to make submissions in relation to it.

 

The submission period must run for a minimum period of six weeks after which, the Council having considered any submissions received, may resolve to adopt the proposed local law or a law which is not significantly different.

 

The proposed local law has also been referred to the Policy and Legislation Committee for consideration.

 

OFFICER COMMENT

 

The proposed local law is broadly based on the WALGA model Activities in Thoroughfares and Public Places and Trading Local Law but has been modified and amplified to provide for matters specific to the locality of Busselton. For example, additions provisions dealing with “drag out” (being material such as sand deposited on a road by a vehicle in an inappropriate manner) have been included in the local law. The sections dealing with permissible verge treatments have also been amended to relate only to verges adjacent to land zoned residential, given the rural nature of most of the district. Provisions dealing with the removal of trees and gardens on thoroughfares have been amended based on modifications to the model local law done by other local governments which are considered to be more appropriate to the locality.

 

The following is an outline of the proposed local law and the content of each part.

 

Part 1 – Preliminary

This part provides for administrative matters concerning the local law – such as application, commencement, definition and repeal of obsolete local laws.

 

Part 2 – Activities in Thoroughfares and Public Places

Division 1 of Part 2 of the proposed local law covers the general provisions relating to thoroughfares. It includes prohibitions on obstructing thoroughfares and activities which may interfere with traffic or pedestrian movement.

 

Division 1 also prohibits the clearing or planting of plants on verges throughout the district. A permit must be obtained prior to the removal of a tree on a verge abutting a landowner’s property. A person can only interfere with a garden (except a tree) provided it abuts their lot, the garden was not planted by the City, and the interference is done pursuant to the installation of a “permissible verge treatment”.

 

Division 3 of Part 2 clarifies the position in respect of permissible verge treatments on verges adjacent to land zoned Residential under the scheme. These provisions allow a landowner to install a combination of lawn, garden or other hard material on verge adjacent to their lot without a permit in various circumstances. It replaces the Bylaw relating to Street Lawns and Gardens 1994 where currently a permit is required for the installation of any verge treatment (other than lawn). This is not readily complied with, seen as an administrative burden, and not in keeping with the processes in the rest of the state. However, under the proposed local law, a landowner can install a verge treatment provided it is lawn, garden or a combination of lawn, garden and “acceptable material” - being brick or block-paving, concrete, asphalt or bitumen seal in order to create an appropriate “crossover”. Departure from this standard is permissible provided a permit has been obtained.

 

Part 3 – Signs

Part 3 deals with signs on thoroughfares. The current Local Law Relating to Signs and other Advertising Devices 2004 will be repealed by the proposed local law. Signs on private property will continue to be dealt with under the Scheme as per previous reports to the Council. Signs on City owned or managed land will be dealt with under the Local Government Property Local Law and signs on thoroughfares will be dealt with under the proposed local law. The provisions relating to signs contained in the Local Government Property Local Law are essentially replicated under the proposed local law to ensure consistency within the district.

 

Small portable direction signs which are placed on thoroughfares for the duration of a home open or a garage sale do not require a permit. Other signs on thoroughfares require a permit and are subject to specific conditions depending on their nature, as determined by the City.

 

Part 4 – Obstructing Animals, Vehicles and Shopping Trolleys

This part creates offences for leaving vehicles, animals and shopping trolleys on thoroughfares and replaces the Bylaw relating to Removal and Disposal of Obstructing Animals or Vehicles 1977.

 

Part 6 – Trading in Thoroughfares and Public Places

This part replaces the current Bylaws relating to Trading in Public Places 1992 and Bylaw relating to Eating Areas in Streets and other Public Places 1994. Division 1 deals with stallholders and traders and provides for circumstances in which a permit is required to trade and the conditions attaching to such activities. Division 2 deals with street entertainers and Division 3 deals with outdoor eating.

 

This part does not propose any radical changes from how applications for permits are currently assessed as these are more matters of policy dealt with under the various applicable policies. However, the local law will create consistency in the way the City deals with applications for permits on a variety of matters, increase penalties to reflect practices across the State and confirm the setting of fees through the fees and charges budgeting process.

 

Part 7 - Permits

Administrative matters pertaining to permits are contained in this section and aim to be as consistent as possible with the permit system under the Local Government Property Local Law 2010.

 

Parts 8, 9 and 10 – Objections and Appeals, Miscellaneous Notices and Enforcement

These parts establish provisions for ensuring rights of appeal and objection as well as enforcement of the local law by the City through notices, creation of offences and infringement penalties.

 

Repealed Local Laws

The current Bylaws relating to the Depositing and Removal of Refuse, Rubbish, Litter and Disused Materials  1978 and Building By-laws – Numbering of Houses 1955 are also repealed as they are obsolete and covered by various provisions in other written laws.

 

CONCLUSION

 

The proposed local law will provide a modern approach to the treatment of activities in thoroughfares and trading in public places consistent with the rest of the State. It will also update the penalties applicable to breaches of the local law and confirm the ability to regulate fees through the fees and charges process. For these reasons it is recommended that the Council commence the law-making process.

 

OPTIONS

 

In addition to the Officer’s recommendations (as per Officer Recommendations 1, 2 and 3 below), Council has the following alternative options regarding the regulation of thoroughfares and trading:

 

Option 1

                                              

Not to proceed with the local law process and rely on the current local laws to regulate activities within the district. However, given the statutory requirement to review local laws every 8 years, and the somewhat outdated nature of the current local laws, it is recommended that the Council initiate a review of the current local laws.

 

Option 2

 

Council could choose to vary the provisions of the proposed local law in any number of ways. This is, however, the form of local law recommended at this stage for the reasons stated in the report. There will be further opportunity for making changes to the proposed local law following advertising and consultation, provided the changes are not significantly different from what is currently proposed. If any changes are of a significant nature the amended proposed local law would need to be re-advertised.

      

TIMELINE FOR IMPLEMENTATION OF RECOMMENDATION

 

Within two weeks of the Council decision to commence the law-making process, the proposed local law will be advertised for public comment. The statutory consultation period is a minimum of six weeks and following the close of the advertising period a report will be submitted to the Council for further consideration which, depending on the number and nature of submissions received, could be within three months.

 

COMMITTEE RECOMMENDATION AND OFFICER RECOMMENDATION

 

 (1)      That the Council commences the law-making process, for the City of Busselton Activities in Thoroughfares and Public Places and Trading Local Law 2014, the purpose and effect of the local law being as follows:

 

Purpose: To consolidate and make one law relating to activities in thoroughfares and trading in thoroughfares and public places.

 

Effect: Some activities are prohibited and some activities are permitted only under permit on thoroughfares and public places.

 

(2)       That Council authorises the CEO to carry out the law-making procedure under section 3.12(3) of the Local Government Act, by -

(i)        giving Statewide public notice and local public notice of the proposed local law; and

(ii)       giving a copy of the proposed local law and public notice to the Minister for Local Government.

 

(3)       That the CEO, after the close of the public consultation period, submits a report to the Council on any submissions received on the proposed local law to enable the Council to consider the submissions made and to determine whether to make the local law in accordance with section 3.12(4) of the Act.

 

 

 


(1)           Council

(2)           19

(3)           24 September 2014

(4)           10.2

(5)           Attachment a

(6)           Activities in Thoroughfares and Public Places and Trading Local Law 2014

(7)                   

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Activities in Thoroughfares and Public Places and Trading

Local Law 2014

 

 

 

 

 

Local Government Act 1995

 

 

 

 

 

 

 

 

 

 

 

 

 


LOCAL GOVERNMENT ACT 1995

 

City of Busselton

 

ACTIVITIES IN THOROUGHFARES AND PUBLIC PLACES AND TRADING LOCAL LAW

 

TABLE OF CONTENTS

 

 

PART 1 - PRELIMINARY

1.1        Citation

1.2        Commencement

1.3        Application

1.4        Repeal

   1.5        Definitions

PART 2 – activities IN THOROUGHFARES AND PUBLIC PLACES

Division 1  -  General

2.1        General prohibitions

2.2        Activities allowed with a permit - general

2.3        No possession and consumption of liquor on thoroughfare

Division 2  -  Vehicle crossing

2.4        Temporary Crossings

2.5        Removal of redundant crossing.

Division 3  -  Verge treatments

2.6        Definition

2.7        Application

2.8        Permissible verge treatments

2.9        Only permissible verge treatments to be installed

2.10      Obligations of owner or occupier

2.11      Notice to owner or occupier

2.12      Transitional provision

2.13      Power to carry out public works on verge

Division 4  -  Numbers and Fencing

 

2.15      Assignment of numbers

2.16      Public place – Item 4(1) of Division 1, Schedule 3.1 of Act

Division 5  -  Signs erected by the local government

2.17      Signs

2.18      Transitional

Division 6  -  Driving on a closed thoroughfare


2.19      No driving on closed thoroughfare

PART 3 – ADVERTISING SIGNS ON THOROUGHFARES

Division 1  -  Preliminary

3.1        Definition

Division 2  - Permit

3.2        Advertising signs and portable direction signs

3.3        Matters to be considered in determining application for permit

Division 3  –  Conditions on permit

3.4        Exemption

PART 4 – OBSTRUCTING ANIMALS, VEHICLES OR SHOPPING TROLLEYS

Division 1  -  Animals and vehicles

4.1        Leaving animal or vehicle in public place or on local government property

4.2        Prohibitions relating to animals

Division 2  - Shopping trolleys

4.3        Interpretation

4.4        Shopping trolley to be marked

4.5        Person not to leave trolley in public place

4.6        Retailer to remove abandoned trolley

4.7        Retailer taken to own trolley

PART 5  -  TRADING IN THOROUGHFARES AND PUBLIC PLACES

Division 1  -  Stallholders and traders

Subdivision 1  -  Preliminary

5.1        Interpretation

Subdivision 2  -  Permits

5.2        Stallholder's permit

5.3        Trader's permit

5.4        No permit required to sell newspaper

5.5        Relevant considerations in determining application for permit

5.6        Conditions of permit

5.7        Exemptions from requirement to pay fee or to obtain a permit

Subdivision 3  -  Conduct of stallholders and traders

5.8        Conduct of stallholders and traders

Division 2  -  Street entertainers

Subdivision 1  -  Preliminary

5.9        Interpretation

Subdivision 2  -  Permits

5.10      Permit required to perform

5.11      Variation of permitted area and permitted time

5.12      Duration of permit

5.13      Cancellation of permit

5.14      Obligations of permit holder

Division 3  -  Outdoor eating facilities on public places

5.15      Interpretation

5.16      Permit required to conduct Facility

5.17      Matters to be considered in determining application

5.18      Obligations of permit holder

5.19      Removal of Facility unlawfully conducted

5.20      Use of Facility by public

5.21      Temporary removal of Facility may be requested

PART 6  -  PERMITS

Division 1  –  Applying for a permit

6.1        Application for permit

6.2        Decision on application for permit

Division 2  -  Conditions

6.3        Conditions which may be imposed on a permit

6.4        Imposing conditions under a policy

6.5        Compliance with and variation of conditions

Division 3  -  General

6.6        Duration of permit

6.6        Renewal of permit

6.8        Transfer of permit

6.9        Production of permit

6.10      Cancellation of permit

PART 7  -  OBJECTIONS AND APPEALS

8.1        Application of Part 9 Division 1 of Act

PART 8  -  MISCELLANEOUS NOTICES

8.1        Notice to redirect or repair sprinkler

8.2        Hazardous plants

8.3        Notice to repair damage to thoroughfare

8.4        Notice to remove thing unlawfully placed on thoroughfare

PART 9  -  ENFORCEMENT

Division 1  -  Notices given under this local law

9.1        Offence to fail to comply with notice

9.2        Local government may undertake requirements of notice

Division 2  -  Offences and penalties

9.3        Offences

9.4        Prescribed offences

9.5        Forms

SCHEDULE 1

PRESCRIBED OFFENCES

 

 


(8)           Council

(9)           23

(10)       24 September 2014

(11)       10.2

(12)       Attachment a

(13)       Activities in Thoroughfares and Public Places and Trading Local Law 2014

(14)                  

 

Local Government Act 1995

 

City of Busselton

 

ACTIVITIES IN THOROUGHFARES AND PUBLIC PLACES AND TRADING LOCAL LAW

 

Under the powers conferred by the Local Government Act 1995 and under all other powers enabling it, the Council of the City of Busselton resolved on [insert date] to make this local law.

 

 

PART 1 - PRELIMINARY

 

1.1     Citation

This local law may be cited as the City of Busselton Activities in Thoroughfares and Public Places and Trading Local Law.

 

1.2     Commencement

This local law commences on the 14th day after which it is published in the Government Gazette.

 

1.3     Application

This local law applies throughout the district.

 

1.4     Repeal

(1)     The following local laws are repealed –

 

a) Bylaws relating to the Depositing and Removal of Refuse, Rubbish, Litter and Disused materials  published in the Government Gazette on 16 June 1978;

 

b) Bylaw relating to Street Lawns and Gardens published in the Government Gazette on 15 April 1994;

 

c) Bylaw relating to Removal and Disposal of Obstructing Animals or Vehicles published in the Government Gazette on 30 September 1977;

 

d) Building By-laws – Numbering of Houses published in the Government Gazette  on 29 June 1955;

 

e) Bylaws relating to Trading in Public Places published in the Government Gazette on 4 September 1992;

 

f) Bylaw relating to Eating Areas in Streets and other Public Places published in the Government Gazette on 21 January 1994; and

 

g) Local Law Relating to Signs and other Advertising Devices published in the Government Gazette on  9 February 2004.

 

 

 

1.5     Definitions

In this local law unless the context otherwise requires -

 

          "Act" means the Local Government Act 1995;

 

          “animal” means any living thing that is not a human being or plant;

 

"applicant" means a person who applies for a permit;

 

          "authorised person" means a person authorised by the local government under section 9.10 of the Act to perform any of the functions of an authorised person under this local law;

 

                   "built-up area" has the meaning given to it in the Road Traffic Code 2000;

 

"bulk rubbish container" means a bin or container designed or used for holding a substantial quantity of rubbish and which is unlikely to be lifted without mechanical assistance, but does not include a bin or container used in connection with the local government's regular domestic rubbish collection service;

 

          "carriageway" has the meaning given to it in the Road Traffic Code 2000;

 

                   "CEO" means the chief executive officer of the local government;

 

                   "commencement day" means the day on which this local law comes into operation;

 

                   "Council" means the council of the local government;

 

                   "crossing" means a crossing giving access from a public thoroughfare to -

 

                            (a)     private land; or

 

(b)     a private thoroughfare serving private land;

 

                   "district" means the district of the local government;

 

“fauna” means any animal indigenous to or which periodically migrates to any State or Territory of the Commonwealth or the territorial waters of the Commonwealth and includes in relation to any such animal –

(a)     any class of animal or individual member;

(b)     the eggs or larvae; or

(c)     the carcass, skin, plumage or fur.

 

“flora” means all vascular plants, seeds and other flora, whether living or dead.

 

"path" has the meaning given to it in the Road Traffic Code 2000;

 

          "garden" means any part of a thoroughfare planted, developed or treated, otherwise than as a lawn, with one or more plants;

 

                   "intersection" has the meaning given to it in the Road Traffic Code 2000;

 

                   "kerb" includes the edge of a carriageway;

 

          "lawn" means any part of a thoroughfare which is planted only with grass, or with a similar plant, but will include any other plant provided that it has been planted by the local government;

 

                   "liquor" has the meaning given to it in section 3 of the Liquor Control Act 1988;

 

                   "local government" means the City of Busselton;

 

                   "local government property" means anything except a thoroughfare –

 

                            (a)     which belongs to the local government or in which the local government has an interest;

 

                            (b)     of which the local government is the management body under the Land Administration Act 1997; or

 

(c)     which is an 'otherwise unvested facility' within section 3.53 of the Act;

 

"local planning scheme" means a local planning scheme of the local government made under the Planning and Development Act 2005;

 

                   "lot" has the meaning given to it in the Planning and Development Act 2005;

 

                   "owner" or "occupier" in relation to land does not include the local government;

 

          "permissible verge treatment" means a treatment described in clause 2.8(2), and includes any reticulation pipes and sprinklers installed for the purposes of the treatment;

 

                   "permit" means a permit issued under this local law;

 

                   "permit holder" means a person who holds a valid permit;

 

                   "person" does not include the local government;

 

          "premises" for the purpose of the definition of "public place", means a building or similar structure, but does not include a carpark or a similar place;

 

          "public place" includes -

 

(a)     any thoroughfare or place which the public are allowed to use, whether or not the thoroughfare or place is on private property; and

 

(b)     local government property;

 

but does not include premises on private property from which trading is lawfully conducted under a written law.

 

                   "Regulations" means the Local Government (Functions and General) Regulations

                   1996;

 

          "sign" includes a notice, flag, mark, structure or device on which may be shown words, numbers, expressions or symbols;

 

          “standards and specifications” means the document produced by the local government specifying the standards and specifications which apply to the construction of vehicle crossovers;

 

“thoroughfare” has the meaning given to it in the Act, but does not include a private thoroughfare which is not under the management or control of the local government;

 

          “tree” means a woody perennial plant generally having a single stem or trunk which will grow to a height of approximately 2 metres or higher;

 

"vehicle" includes –

 

(a)      every conveyance and every object capable of being propelled or drawn on wheels, tracks or otherwise; and

 

(b)     an animal being ridden or driven,

 

                            but excludes –

 

(a)     a wheel-chair or any device designed for use by a physically impaired person on a path; and

 

(b)     a pram, a stroller or a similar device;

 

                   “verge” means that part of a thoroughfare between the carriageway and the land which

                   abuts the thoroughfare, but does not include any path; and

 

“written law” has the same meaning given to it by section 5 of the Interpretation Act 1984 and includes this local law.

 

 

PART 2 – ACTIVITIES IN THOROUGHFARES AND PUBLIC PLACES

 

Division 1  -  General

 

2.1     General prohibitions

A person shall not -

 

(a)     plant any plant on a thoroughfare unless in accordance with Division 3 of Part 2;

 

(b)     remove or damage a tree or part of a tree on thoroughfare, irrespective of whether the tree was planted by the owner or occupier of the lot abutting that portion of the thoroughfare, unless the person is –

 

(i)      acting under authority of a permit issued by the local government; or

 

(ii)     a local government employee or contractor engaged by the local government to undertake work in relation to a particular tree or trees on thoroughfares in the district; or

 

(iii)    acting under authority of a written law;

 

(c)     remove or damage a lawn or a garden or remove any plant or part of a plant from a lawn or a garden that is not a tree unless –

 

(i)      the person is the owner or the occupier of the lot abutting that portion of the thoroughfare; and

(ii)     the lawn or the garden or the particular plant was installed by that person or an earlier owner or occupier of the lot; and

(iii)    the removal or damage to that particular lawn or garden or plant  is done pursuant to Division 3 of this part in order to install a permissible verge treatment; or

(iv)    the person is acting under the authority of a written law;

 

(d)     take, injure or kill any fauna that is on or above any thoroughfare, unless that person is authorised to do so under a written law;

 

(e)     place , or allow to be placed or remain, on a thoroughfare any thing (except water) that –

 

(i) obstructs the thoroughfare; or

(ii) results in a hazard for any person using the thoroughfare;

 

(f)      unless at the direction of the local government, damage, remove or interfere with any part of a thoroughfare, or any structure erected on a thoroughfare by the local government or a person acting under the authority of a written law;

 

(g)     play or participate in any game or sport so as to cause danger to any person or thing or impede the movement of vehicles or persons on a thoroughfare; or

 

(h)     within a mall, arcade or verandah of a shopping centre, ride any bicycle, skateboard, rollerblades or similar device.

 

2.2     Activities allowed with a permit - general

(1)     A person shall not, without a permit –

 

(a)     dig or otherwise create a trench through or under a kerb or path;

 

(b)     subject to Division 3 of this Part, throw, place or deposit any thing on a verge except for removal by the local government under a bulk rubbish collection, and then only in accordance with the terms and conditions and during the period of time advertised in connection with that collection by the local government;

 

(c)     cause any obstruction to a vehicle or a person using a thoroughfare as a thoroughfare;

 

(d)     cause any obstruction to a water channel or a water course in a thoroughfare;

 

(e)     throw, place or drain offensive, noxious or dangerous fluid onto a thoroughfare;

 

(f)      allow any material including dust, sand, wastewater, waste, mud, concrete, paint, oil or chemicals to be blown, conveyed, deposited, or discharged in, on or across a thoroughfare;

 

(g)     damage a thoroughfare;

 

(h)     light any fire or burn any thing on a thoroughfare other than under a permit issued under Part 6;

 

(i)      prune or fell any tree in or onto a thoroughfare unless that person is –

 

(i)      a local government employee or contractor engaged by the local government to undertake work in relation to a particular tree or trees on thoroughfares in the district or on local government property generally; or

(ii)     acting under the authority of a written law;

 

(j)      unless installing, or in order to maintain, a permissible verge treatment -

 

(i)      lay pipes under or provide taps on any verge; or

(ii)     place or install any thing on any part of a thoroughfare, and without limiting the generality of the foregoing, any gravel, stone, flagstone, cement, concrete slabs, blocks, bricks, pebbles, plastic sheeting, kerbing, wood chips, bark or sawdust;

 

(j)      provide, erect, install or use in or on any building, structure or land abutting on a thoroughfare any hoist or other thing for use over the thoroughfare;

 

(k)     on a public place use anything or do anything so as to create a nuisance;

 

(l)      place or cause to be placed on a thoroughfare a bulk rubbish container; or

 

(m)    interfere with the soil of, or anything in a thoroughfare or take anything from a thoroughfare.

 

(2)      The local government may exempt a person from compliance with subclause (1) on the application of that person.

 

2.3     No possession and consumption of liquor on thoroughfare

(1)      A person shall not consume any liquor or have in her or his possession or under her or his control any liquor on a thoroughfare unless –

 

(a)  that is permitted under the Liquor Control Act 1988 or under another written law; or

 

(b)  the person is doing so in accordance with a permit.

 

(2)   Subclause (1) does not apply where the liquor is in a sealed container.

 

 

Division 2  -  Vehicle crossing

 

 

2.4     Temporary Crossings

(1)     Where it is likely that works on a lot will involve vehicles leaving a thoroughfare and entering the lot, the person responsible for the works shall obtain a permit for the construction of a temporary crossing to protect the existing carriageway, kerb, drains and path, where –

 

(a)     a crossing does not exist; or

 

(b)     a crossing does exist, but the nature of the vehicles and their loads is such that they are likely to cause damage to the crossing.

 

(2)     The “person responsible for the works” in subclause (1) is to be taken to be –

 

(a)     the builder named on any permit issued under the Building Regulations 2012, if one has been issued in relation to the works; or

 

(b)     the registered proprietor of the lot, if no permit has been issued under the Building Regulations 2012 in relation to the works.

 

(3)     If the local government approves an application for a permit for the purpose of subclause (1), the permit is taken to be issued on the condition that until such time as the temporary crossing is removed, the permit holder shall keep the temporary crossing in good repair and in such a condition so as not to create any danger or obstruction to persons using the thoroughfare.

 

2.5     Removal of redundant crossing

(1)     Where works on a lot will result in a crossing no longer giving access to a lot, the crossing is to be removed and the kerb, drain, path, verge and any other part of the thoroughfare affected by the removal are to be reinstated to the satisfaction of the local government.

 

(2)     The local government may give written notice to the owner or occupier of a lot requiring her or him to –

 

(a)     remove any part of or all of a crossing which does not give access to the lot; and

 

(b)     reinstate the kerb, drain, path, verge and any other part of the thoroughfare, which may be affected by the removal,

 

within the period of time stated in the notice, and the owner or occupier of the lot shall comply with that notice.

 

 

Division 3  -  Verge treatments

 

 

2.6     Definition

In this Division, unless the context otherwise requires -

 

                   "acceptable material" means any of the following materials which will create a hard surface:

(a)  brick or block paving;

(b)  concrete;

(c)  asphalt; and

(d)  bitumen seal.

 

Compacted materials and synthetic turf do not constitute acceptable material.

 

2.7     Application

Clauses 2.8 to 2.11 only apply to verges which abut land zoned Residential, as designated under the local planning scheme.

 

 

2.8     Permissible verge treatments

(1)     Unless otherwise approved in writing by the local government, and subject to Division 1 of Part 2 of this local law, an owner or occupier of land which abuts on a verge may on that part of the verge directly in front of her or his land install a permissible verge treatment.

 

(2)      The permissible verge treatments are –

 

(a)    the planting and maintenance of a lawn;

 

(b)    the planting and maintenance of a garden provided that -

 

(i) clear sight visibility is maintained at all times for a person using the abutting thoroughfare in the vicinity of an intersection or bend in the thoroughfare or using a driveway on land adjacent to the thoroughfare for access to or from the thoroughfare;

(ii) where there is no path, a pedestrian has safe and clear access of a minimum width of 2m along that part of the verge immediately adjacent to the kerb; 

(iii) it does not include a wall or built structure;

(iv) it is not of a thorny, poisonous or hazardous nature; and

(v) no plant (except grasses or a similar plant) is within 6m of an intersection or within 2m of a carriageway; or

 

(c)     the installation of an acceptable material on only that portion of verge permitted under the local government’s standards and specifications, and the planting and maintenance of either a lawn or a garden on the balance of the verge in accordance with paragraph (a) or (b).

 

2.9     Only permissible verge treatments to be installed

(1)     A person shall not install or maintain a verge treatment which is not a permissible verge treatment.

 

(2)     The owner and occupier of the lot abutting a verge treatment referred to in subclause (1) are each to be taken to have installed and maintained that verge treatment for the purposes of this clause and clause 2.10.

 

2.10   Obligations of owner or occupier

An owner or occupier who installs or maintains a permissible verge treatment shall -

 

(a)     keep the permissible verge treatment in a good and tidy condition and ensure, where the verge treatment is a garden or lawn, that a path on the verge and a carriageway adjoining the verge is not obstructed by the verge treatment;

 

(b)     ensure the verge treatment does not cause a sight distance obstruction to any person using a path on the verge or a carriageway or crossing adjoining the verge or in proximity to it;

 

(c)     not place any obstruction on or around the verge treatment;

 

(d)     not disturb a path on the verge;

 

(e)     ensure that the verge treatment does not damage or obstruct a drain, manhole, gully, pit, pipe, channel, kerb, public utility service or tree planted by the local government;

 

(f)      ensure any sprinklers or pipes installed to irrigate a verge treatment –

 

(i)      do not protrude above the level of the lawn when not in use;

(ii)    are not used at such times so as to cause unreasonable inconvenience to pedestrians or other persons; and

(iii)   do not otherwise present a hazard to pedestrians or other persons.

 

2.11   Notice to owner or occupier

The local government may give a notice in writing to the owner or the occupier of a lot abutting on a verge to make good, within the time specified in the notice, any breach of a provision of this Division.

 

2.12   Transitional provision

(1)     In this clause –

 

          "former provisions" means the local law of the local government which permitted certain types of verge treatments, whether with or without the consent of the local government, and which was repealed by this local law.

 

(2)     A verge treatment which –

 

(a)     was installed prior to the commencement day; and

 

(b)     on the commencement day is a type of verge treatment which was permitted under and complied with the former provisions,

 

is to be taken to be a permissible verge treatment for so long as the verge treatment remains of the same type and continues to comply with the former provisions.

 

2.13   Power to carry out public works on verge

Where the local government or an authority empowered to do so under a written law disturbs a verge, the local government or the authority -

 

(a)     is not liable to compensate any person for that disturbance;

 

(b)     may backfill with sand, if necessary, any garden or lawn; and

 

(c)     is not liable to replace or restore any –

 

(i)  verge treatment and, in particular, any plant or any acceptable material or other hard surface; or

(ii) sprinklers, pipes or other reticulation equipment.

 

 

Division 4  -  Numbers and Fencing

 

2.15     Assignment of Numbers

The local government may assign a number to a lot in the district and may assign another number to the lot instead of that previously assigned.

 

2.16   Public place – Item 4(1) of Division 1, Schedule 3.1 of Act

The following places are specified as a public place for the purpose of item 4(1) of Division 1 of Schedule 3.1 of the Act –

 

(a)     a public place, as that term is defined in clause 1.5.

 

Division 5  -  Signs erected by the local government

 

2.17   Signs

(1)     A local government may erect a sign on a public place specifying any conditions of use which apply to that place.

(2)     A person shall comply with a sign erected under subclause (1).

(3)     A condition of use specified on a sign erected under subclause (1) is to be for the purpose of giving notice of the effect of a provision of this local law.

 

2.18   Transitional

Where a sign erected on a public place has been erected under a local law of the local government repealed by this local law, then on and from the commencement day, it is to be taken to be a sign erected under clause 2.17 if –

 

(a)     the sign specifies a condition of use relating to the public place which gives notice of the effect of a provision of this local law; and

 

(b)     the condition of use specified is not inconsistent with any provision of this local law.

 

Division 6  -  Driving on a closed thoroughfare

 

2.19   No driving on closed thoroughfare

(1)     A person shall not drive or take a vehicle on a closed thoroughfare unless –

 

(a)    that is in accordance with any limits or exceptions specified in the order made under section 3.50 of the Act; or

 

(b)    the person has first obtained a permit.

 

(2)     In this clause –

 

"closed thoroughfare" means a thoroughfare wholly or partially closed under section 3.50 or 3.50A of the Act.

 

 

 

PART 3 – ADVERTISING SIGNS ON THOROUGHFARES

 

 

Division 1  -  Preliminary

 

3.1     Definition

In this Part, unless the context otherwise requires -

 

          "advertising sign" means a sign used for the purpose of advertisement or to draw attention to a product, business, person or event and includes a home open sign and a garage sale sign;

 

“home open sign” means a portable free standing sign used to direct persons to a home for sale that is open for inspection by the public;

 

“garage sale sign” means a portable free standing sign used to direct persons to a garage sale at a residential premises;

 

           

Division 2  - Permit

 

3.2     Advertising signs and portable direction signs

(1)     A person shall not, without a permit –

 

(a)     erect, place or maintain an advertising sign on or above a thoroughfare; or

 

(b)     post any bill or paint, place or affix any advertisement on a thoroughfare.

 

(2)     Notwithstanding subclause (1), a permit is not required in respect of a home open sign or a garage sale sign, provided that –

 

(a)     the signs neither exceeds 500mm in height nor 0.5m2 in area;

 

(b)     the sign is placed or erected on a thoroughfare no more than half an hour prior to the garage sale or home open and is removed within half an hour of the close of the garage sale or home open; and

 

(c)     there is no more than one home open sign or garage sale sign at any road intersection and no more than six separate signs which delineate no more than 2 alternative routes to the home open or garage sale.

 

(3)     Notwithstanding subclause (1) and (2), a person shall not erect or place an advertising sign -

 

(a)     on a path;

 

(b)     over any path where the resulting vertical clearance between the sign and the path is less than 2.5m;

 

(c)     on or within 1m of a carriageway;

 

(d)     in any other location where, in the opinion of the local government, the sign is likely to obstruct lines of sight along a thoroughfare or cause danger to any person using the thoroughfare; or

 

(e)     on any natural feature, including a rock or tree, on a thoroughfare, or on any bridge or the structural approaches to a bridge.

 

3.3     Matters to be considered in determining application for permit

In determining an application for a permit for the purpose of clause 3.2(1), the local government is to have regard to -

 

(a)     any other written law regulating the erection or placement of signs within the district;

 

(b)     the dimensions of the sign;

 

(c)     whether or not the sign will create a hazard to persons using a thoroughfare;

 

(d)     the amount of the public liability insurance cover, if any, to be obtained by the applicant; and

 

(e)     any other matters it considers relevant.

 

3.4       Exemption

(1)       The local government may exempt the holder of a valid stallholder’s permit, trader’s permit, Facility permit, or other event authorisation issued by the local government, from all or part of the prohibitions in clause 3.2 in relation to an advertisement that directly relates to the goods or services which are the subject of the permit or authorisation.

 

(2)       Signs erected by the local government or an authority empowered to do so under a written law are exempted from the requirement to obtain a permit.

 

3.5       Impounding of advertising signs

An authorised person may remove or impound an advertising sign or portable direction sign that is in a thoroughfare in contravention of this local law.

 

PART 4 – OBSTRUCTING ANIMALS, VEHICLES OR SHOPPING TROLLEYS

 

Division 1  -  Animals and vehicles

 

4.1     Leaving animal or vehicle in public place

(1)      A person shall not leave or allow an animal or a vehicle, or any part of a vehicle, in a public place so that it obstructs the use of any part of that public place, unless that person has first obtained a permit or is authorised to do so under a written law.

 

4.2     Prohibitions relating to animals

(1)     In subclause (2), "owner" in relation to an animal includes –

 

(a)     an owner of it;

 

(b)     a person in possession of it;

 

(c)     a person who has control of it; and

 

(d)     a person who ordinarily occupies the premises where the animal is permitted to stay.

 

(2)     An owner of an animal shall not –

 

(a)     allow the animal to enter or remain for any time on any thoroughfare except for the use of the thoroughfare as a thoroughfare and unless it is led, ridden or driven;

 

(b)     allow an animal which has a contagious or infectious disease to be led, ridden or driven in a public place; or

 

(c)     train or race the animal on a thoroughfare.

 

(3)     An owner of a horse shall not lead, ride or drive a horse on a thoroughfare in a built-up area, unless that person does so under a permit or under the authority of a written law.

 

4.3 Removal of vehicle or animal

An authorised person may impound an animal or vehicle left in contravention of clause 4.1.

 

Division 2  - Shopping trolleys

 

4.4     Interpretation

In this Division –

 

          "retailer" means a proprietor of a shop in respect of which shopping trolleys are provided for the use of customers of the shop; and

 

          "shopping trolley" means a wheeled container or receptacle supplied by a retailer to enable a person to transport goods.

 

4.5     Shopping trolley to be marked

A retailer shall clearly mark its name or its trading name on any shopping trolley made available for the use of customers.

 

4.6     Person not to leave trolley in public place

A person shall not leave a shopping trolley in a public place other than in an area set aside for the storage of shopping trolleys.

 

4.7     Retailer to remove abandoned trolley

(1)     If a shopping trolley is found in a public place, other than in an area set aside for the storage of shopping trolleys, the local government may advise (verbally or in writing) a retailer whose name is marked on the trolley of the location of the shopping trolley.

 

(2)     A retailer shall remove a shopping trolley within 24 hours of being so advised under subclause (1), unless the retailer -

 

(a)     requests the local government to collect and deliver the shopping trolley to the retailer; and

 

(b)    pays any fee for that collection and delivery (imposed and determined under and in accordance with sections 6.16 to 6.19 of the Act) within the period specified by the local government.

 

4.8     Retailer taken to own trolley

In the absence of any proof to the contrary, a shopping trolley is to be taken to belong to a retailer whose name is marked on the trolley.

 

4.9     Impounding of abandoned trolley

An authorised person may impound a shopping trolley that is –

(a)  left on a thoroughfare or public place that is not marked in accordance with clause 4.5; or

(b)  not removed by a retailer after having been so advised under clause 4.7(1).

 

 

 

PART 5  -  TRADING IN THOROUGHFARES AND PUBLIC PLACES

 

Division 1  -  Stallholders and traders

 

 

Subdivision 1  -  Preliminary

 

5.1     Interpretation

In this Division, unless the context otherwise requires -

 

          "Competition Principles Agreement" means the Competition Principles Agreement executed by each State and Territory of the Commonwealth and the Commonwealth of Australia on 11 April 1995;

 

          "stall" means a movable or temporarily fixed structure, stand or table in, on or from which trading is conducted;

 

                   "stallholder" means a person in charge of a stall;

 

                   "stallholder’s permit" means a permit issued to a stallholder;

 

                   "trader" means a person who carries on trading;

 

                   "trader’s permit" means a permit issued to a trader; and

 

                   "trading" includes –

 

(a)     the selling or hiring of, the offering for sale or hire of or the soliciting of orders for goods or services in a public place;

 

(b)     displaying goods in any public place for the purpose of –

 

(i)      offering them for sale or hire;

(ii)     inviting offers for their sale or hire;

(iii)    soliciting orders for them; or

(iv)    carrying out any other transaction in relation to them; and

 

(c)     the going from place to place, whether or not public places, and –

 

(i)      offering goods or services for sale or hire; or

(ii)     inviting offers or soliciting orders for the sale or the hire of goods or

         services.

 

                           

Subdivision 2  -  Permits

 

5.2     Stallholder's permit

(1)      A person shall not conduct a stall on a public place unless that person is –

 

(a)     the holder of a valid stallholder’s permit; or

 

(b)     an assistant specified in a valid stallholder’s permit.

 

(2)      Every application for a stallholder’s permit shall –

 

(a)      state the full name and address of the applicant;

 

(b)      specify the proposed number of assistants to be engaged by the applicant in conducting the stall, as well as their names and addresses if already engaged;

 

(c)     specify the proposed location of the stall;

 

(d)     specify the period of time for which the permit is sought, together with the proposed days and hours of operation;

 

(e)     specify the proposed goods or services to be sold or hired or offered for sale or hire from the stall; and

 

(f)      be accompanied by an accurate plan and description of the proposed stall.

 

5.3     Trader's permit

(1)      A person shall not carry on trading unless that person is –

 

(a)    the holder of a valid trader’s permit; or

 

(b)    an assistant specified in a valid trader’s permit.

 

(2)     Every application for a trader’s permit shall –

 

(a)     state the full name and address of the applicant;

 

(b)     specify the proposed number of assistants, if any, to be engaged by the applicant in trading, as well as their names and addresses if already engaged;

 

(c)     specify the location or locations in which the applicant proposes to trade;

 

(d)     specify the period of time for which the permit is sought, together with the proposed days and hours of trading;

 

(e)     specify the proposed goods or services which will be traded; and

 

(f)      be accompanied by an accurate plan and description of any proposed structure or vehicle which may be used by the applicant in trading.

 

5.4     No permit required to sell newspaper

Notwithstanding any other provision of this local law, a person who sells, or offers for sale, a newspaper only is not required to obtain a permit.

 

5.5     Relevant considerations in determining application for permit

(1)      In determining an application for a permit for the purposes of this Division, the local government is to have regard to –

 

(a)     any relevant policies of the local government;

 

(b)     the desirability of the proposed activity;

 

(c)     the location of the proposed activity;

 

(d)     the principles set out in the Competition Principles Agreement; and

 

(e)     such other matters as the local government may consider to be relevant in the circumstances of the case.

 

(2)      The local government may refuse to approve an application for a permit under this Division on any one or more of the following grounds –

 

(a)     that the applicant has committed a breach of any provision of this local law or of any written law relevant to the activity in respect of which the permit is sought;

 

(b)     that the applicant is not a desirable or suitable person to hold a permit;

 

(c)     that –

 

(i)      the applicant is an undischarged bankrupt or is in liquidation;

(ii)     the applicant has entered into any composition or arrangement with creditors; or

(iii)    a manager, an administrator, a trustee, a receiver, or a receiver and manager has been appointed in relation to any part of the applicant's undertakings or property; or

 

(d)     such other grounds as the local government may consider to be relevant in the circumstances.

 

5.6     Conditions of permit

(1)     If the local government approves an application for a permit under this Division subject to conditions, those conditions may include –

 

(a)     the place, the part of the district, or the thoroughfare to which the permit applies;

(b)     the days and hours during which a permit holder may conduct a stall or trade;

(c)     the number, type, form and construction, as the case may be, of any stand, table, structure or vehicle which may be used in conducting a stall or in trading;

(d)     the goods or services in respect of which a permit holder may conduct a stall or trade;

(e)     the number of persons and the names of persons permitted to conduct a stall or trade;

(f)      the requirement for personal attendance at the stall or the place of trading by the permit holder and the nomination of assistants, nominees or substitutes for the permit holder;

(g)     whether and under what terms the permit is transferable;

(h)     any prohibitions or restrictions concerning the -

(i)      causing or making of any noise or disturbance which is likely to be a nuisance to persons in the vicinity of the permit holder;

(ii)     the use of amplifiers, sound equipment and sound instruments;

(iii)    the use of signs; and

(iv)    the use of any lighting apparatus or device;

(i)      the manner in which the permit holder's name and other details of a valid permit are to be displayed;

(j)      the care, maintenance and cleansing of the stall or any structure used for trading and the place of the stall or any structure;

(k)     the vacating of the place of a stall or trading when the stall is not being conducted or trading is not being carried on;

 

(l)      the acquisition by the stallholder or trader of public risk insurance;

 

(m)    the period for which the permit is valid;

 

(n)     the designation of any place or places where trading is wholly or from time to time prohibited by the local government; and

 

(o)     any other conditions as the local government may apply.

 

(2)     Where a permit holder by reason of illness, accident or other sufficient cause is unable to comply with this local law, the local government may at the request of that permit holder authorise another person to be a nominee of the permit holder for a specified period, and this local law and the conditions of the permit shall apply to the nominee as if he or she was the permit holder.

 

5.7     Exemptions from requirement to pay fee or to obtain a permit

(1)     In this clause –

 

          "charitable organisation" means an institution, association, club, society or body whether incorporated or not, the objects of which are of a charitable, benevolent, religious, cultural, educational, recreational, sporting or other like nature and from which any member does not receive any pecuniary profit except where the member is an employee or the profit is an honorarium; and

 

          "commercial participant" means any person who is involved in operating a stall or in conducting any trading activity for personal gain or profit.

 

(2)     The local government may waive any fee required to be paid by an applicant for a stallholder's permit or a trader's permit on making an application for or on the issue of a permit, or may return any such fee which has been paid, if the stall is conducted or the trading is carried on –

 

(a)     on a portion of a public place adjoining the normal place of business of the applicant; or

 

(b)     by a charitable organisation that does not sublet space to, or involve commercial participants in the conduct of a stall or trading, and any assistants that may be specified in the permit are members of that charitable organisation.

 

(3)     The local government may exempt a person or a class of persons, whether or not in relation to a specified public place, from the requirements of this Division.

 

(4)     Notwithstanding any other provisions of this local law, a requirement to obtain a permit under this local law does not apply to –

(a)     a special event or trading authorised by the local government under another written law or agreement; or

(b)     a person trading in a street market authorised by the local government.

 

 

Subdivision 3  -  Conduct of stallholders and traders

 

5.8     Conduct of stallholders and traders

(1)      A stallholder while conducting a stall or a trader while trading shall –

 

(a)     display her or his permit to do so in a conspicuous place on the stall, vehicle or temporary structure or if there is no stall, vehicle or temporary structure, carry the permit with her or him while conducting a stall or trading;

 

(b)     not display a permit unless it is a valid permit; and

 

(c)     when selling goods by weight, carry and use for that purpose, scales tested and certified in accordance with the provisions of the National Measurement Act 1960.

 

(2)      A stallholder or trader shall not –

 

(a)     deposit or store any thing on any part of a thoroughfare so as to obstruct the movement of pedestrians or vehicles;

 

(b)     act in an offensive manner or create a nuisance;

 

(c)     use or cause to be used any apparatus or device including any flap or shelf, whereby the dimensions of a stall, vehicle or structure are increased beyond those specified in the permit; or

 

(d)     in the case of a trader, carry on trading from a public place, unless there is adequate parking for customers' vehicles reasonably close to the place of trading.

 

 

 

Division 2  -  Street entertainers

 

Subdivision 1  -  Preliminary

 

5.9     Interpretation

In this Division, unless the context otherwise requires –

 

          "perform" includes to play a musical instrument, sing, mime, dance, give an acrobatic or aerobic display or entertain, but does not include public speaking;

 

                   "permit" means a permit issued for the purpose of clause 5.10;

 

          "permitted area" means the area or areas, specified in a permit, in which the permit holder may perform; and

 

          "permitted time" means the time or times, specified in a permit, during which the permit holder may perform.

 

 

Subdivision 2  -  Permits

 

5.10   Permit required to perform

A person shall not perform in a public place without a permit.

 

5.11   Variation of permitted area and permitted time

(1)     The local government may by notice in writing to a permit holder vary –

 

(a)     the permitted area;

 

(b)     the permitted time; or

 

(c)     both the permitted area and the permitted time,

 

shown on a permit.

 

(2)     The local government may direct a permit holder to move from one permitted area to another permitted area, if more than one area is specified in a permit.

 

5.12   Duration of permit

A permit is valid for a period of 3 months after the date on which it is issued unless it is sooner cancelled under this local law.

 

5.13   Cancellation of permit

The CEO may cancel a permit if in her or his opinion the volume of sound caused by the permit holder in connection with the performance adversely affects the enjoyment, convenience or comfort of other persons in a public place or otherwise, or if, in her or his opinion, or in the opinion of an authorised person, the performance otherwise constitutes a nuisance.

 

5.14   Obligations of permit holder

A permit holder shall not in a public place –

 

(a)     act in an offensive manner or create a nuisance; or

 

(b)     place, install, erect, play or use any musical instrument or any device which emits music, including a loud speaker or an amplifier -

 

(i)  other than in the permitted area; and

(ii) unless the musical instrument or device is specified in the permit.

 

 

Division 3  -  Outdoor eating facilities on public places

 

5.15   Interpretation

In this Division -

 

          "Facility" means an outdoor eating facility or establishment on any part of a public place, but does not include such a facility or establishment on private land;

 

          "permit holder" means the person to whom a permit has been issued for the purpose of clause 5.16.         

 

5.16   Permit required to conduct Facility

A person shall not establish or conduct a Facility without a permit.

 

5.17            Matters to be considered in determining application

In determining an application for a permit for the purpose of clause 5.16, the local government may consider in addition to any other matter it considers relevant, whether or not -

 

(a)     the Facility is conducted in conjunction with and as an extension of food premises which abut on the Facility, and whether the applicant is the person conducting such food premises;

 

(b)     any abutting food premises are registered in accordance with the Food Act 2008 and whether the use of the premises is permitted under the local planning scheme;

 

(c)     the Facility will comply with any local law made under the Health Act 1911;

 

(d)     users of the Facility will have access to proper and sufficient sanitary and ablutionary conveniences;

 

(e)     the Facility would -

 

(i)       obstruct the visibility or clear sight lines at an intersection of thoroughfares of any person; or

(ii)      impede pedestrian access; and

 

(f)      the tables, chairs and other equipment to be used may obstruct or impede the use of the public place for the purpose for which it was designed.

 

5.18   Obligations of permit holder

(1)     The permit holder for a Facility shall –

 

(a)     ensure that the Facility is conducted at all times in accordance with the provisions of this local law and any local law made under the Health Act 1911;

 

(b)     ensure that the eating area is kept in a clean and tidy condition at all times;

 

(c)     maintain the chairs, tables and other structures in the eating area in a good, clean and serviceable condition at all times;

 

(d)     be solely responsible for all and any costs associated with the removal, alteration, repair, reinstatement or reconstruction of any part of the public place arising from the conduct of the Facility; and

 

(e)     be solely responsible for all rates and taxes levied upon the land occupied by the Facility.

 

(2)     Whenever, in the opinion of the local government, any work is required to be carried out to a Facility, the local government may give a notice to the permit holder for the Facility to carry out that work within the time limited by the notice.

 

(3)     In subclause (2), “work” includes the removal, alteration, repair, reinstatement or reconstruction of any part of a public place arising from or in connection with the setting up or conduct of a Facility.

 

5.19   Removal of Facility unlawfully conducted

Where a Facility is conducted without a permit, or in contravention of a condition of a permit, any tables, chairs, umbrellas or other equipment may be removed by an authorised person and impounded in accordance with the Act.

 

5.20   Use of Facility by public

(1)      A person shall not occupy a chair or otherwise use the equipment in a Facility the subject of a permit unless the person uses them for the purpose of consuming food or drinks provided by the Facility.

 

(2)      A person shall leave a Facility when requested to do so by the permit holder.

 

5.21   Temporary removal of Facility may be requested

(1)     The permit holder for a Facility is to temporarily remove the Facility when requested to do so on reasonable grounds by an authorised person or a member of the Police Service or an emergency service.

 

(2)     The permit holder may replace the Facility removed under subclause (1) as soon as the person who directed her or him to remove it allows it to be replaced.

 

PART 6  -  PERMITS

 

 

Division 1  –  Applying for a permit

 

6.1     Application for permit

(1)     Where a person is required to obtain a permit under this local law, that person shall apply for the permit in accordance with subclause (2).

 

(2)     An application for a permit under this local law must -

 

(a)     be in the form determined by the local government;

 

(b)     be signed by the applicant;

 

(c)     provide the information required by the form; and

 

(d)     be forwarded to the CEO together with any fee imposed and determined by the local government under and in accordance with sections 6.16 to 6.19 of the Act.

 

(3)     The local government may require an applicant to provide additional information reasonably related to an application before determining an application for a permit.

 

(4)     The local government may require an applicant to give local public notice of the application for a permit.

 

(5)     The local government may refuse to consider an application for a permit which is not in accordance with subclause (2).

 

6.2     Decision on application for permit

(1)     The local government may –

 

(a)     approve an application for a permit unconditionally or subject to any conditions; or

 

(b)     refuse to approve an application for a permit.

 

(2)     If the local government approves an application for a permit, it is to issue to the applicant a permit in the form determined by the local government.

 

(3)     If the local government refuses to approve an application for a permit, it is to give written notice of that refusal to the applicant.

 

(4)     Where a clause of this local law refers to conditions which may be imposed on a permit or which are to be taken to be imposed on a permit, the clause does not limit the power of the local government to impose other conditions on the permit under subclause (1)(a).

 

(5)     Where a clause of this local law refers to the grounds on which an application for a permit may be or is to be refused, the clause does not limit the power of the local government to refuse the application for a permit on other grounds under subclause (1)(b).

 

 

Division 2  -  Conditions

 

6.3     Conditions which may be imposed on a permit

The local government may approve an application for a permit subject to conditions relating to -

 

(a)     the payment of a fee;

 

(b)     the duration and commencement of the permit;

 

(c)     the commencement of the permit being contingent on the happening of an event;

 

(d)     the rectification, remedying or restoration of a situation or circumstance reasonably related to the application;

 

(e)     the approval of another application for a permit which may be required by the local government under any written law;

 

(f)      the area of the district to which the permit applies;

 

(g)     where a permit is issued for an activity which will or may cause damage to a public place, the payment of a deposit or bond against such damage;

 

(h)     the obtaining of public risk insurance in an amount and on terms reasonably required by the local government;

 

(i)      the provision of an indemnity from the permit holder indemnifying the local government in respect of any injury to any person or any damage to any property which may occur in connection with the use of the public place by the permit holder; and

 

(j)      any other matter it considers relevant.

 

6.4     Imposing conditions under a policy

(1)     In this clause –

 

          "policy" means a policy of the local government adopted by the Council containing conditions subject to which an application for a permit may be approved under clause 6.2(1)(a).

 

(2)     Under clause 6.2(1)(a) the local government may approve an application subject to conditions by reference to a policy.

 

(3)     The local government is to give a copy of the policy, or the part of the policy which is relevant to the application for a permit, with the form of permit referred to in clause 6.2(2).

 

(4)     An application for a permit is to be taken not to have been approved subject to the conditions contained in a policy until the local government gives the permit holder a copy of the policy or the part of the policy which is relevant to the application.

 

(5)     Sections 5.94 and 5.95 of the Act shall apply to a policy and for that purpose a policy is to be taken to be information within section 5.94(u)(i) of the Act.

 

6.5     Compliance with and variation of conditions

(1)     Where an application for a permit has been approved subject to conditions, or where a permit is to be taken to be subject to conditions under this local law, the permit holder shall comply with each of those conditions.

 

(2)     The local government may vary the conditions of a permit, and the permit holder shall comply with those conditions as varied.

 

 

Division 3  -  General

 

6.6     Duration of permit

A permit is valid for one year from the date on which it is issued, unless it is –

 

(a)     otherwise stated in this local law or in the permit; or

 

(b)     cancelled under clause 6.10.

 

6.7     Renewal of permit

(1)     A permit holder may apply to the local government in writing prior to expiry of a permit for the renewal of the permit.

 

(2)     The provisions of –

 

(a) this Part; and

 

(b) any other provision of this local law relevant to the permit which is to be renewed,

 

shall apply to an application for the renewal of a permit.

 

6.8     Transfer of permit

(1)      An application for the transfer of a valid permit is to –

 

(a)     be made in writing;

 

(b)     be signed by the permit holder and the proposed transferee of the permit;

 

(c)     provide such information as the local government may require to enable the application to be determined; and

 

(d)     be forwarded to the CEO together with any fee imposed and determined by the local government  under and in accordance with sections 6.16 to 6.19 of the Act.

 

(2)      The local government may approve an application for the transfer of a permit, refuse to approve it or approve it subject to any conditions.

 

(3)      Where the local government approves an application for the transfer of a permit, the transfer may be effected by –

 

(a)     an endorsement on the permit signed by the CEO; or

 

(b)     issuing to the transferee a permit in the form determined by the local government.

 

(4)      Where the local government approves an application for the transfer of a permit, it is not required to refund any part of any fee paid by the former permit holder.

 

6.9     Production of permit

A permit holder is to produce to an authorised person her or his permit immediately upon being required to do so by that authorised person.

 

6.10   Cancellation of permit

(1)       Subject to clause 7.1, a permit may be cancelled by the local government if

            the permit holder has not complied with -

 

(a)     a condition of the permit; or

(b)     a provision of any written law which may relate to the activity regulated by the permit.

 

(2)          On the cancellation of a permit the permit holder –

 

(a)     shall return the permit as soon as practicable to the local government; and

(b)     is to be taken to have forfeited any fees paid in respect of the permit.

 

 

 

PART 7  -  OBJECTIONS AND APPEALS

 

 

7.1     Application of Part 9 Division 1 of Act

When the local government makes a decision -

 

(a)     under clause 6.2(1); or

 

(b)     as to whether it will renew, vary, or cancel a permit,

 

the provisions of Division 1 of Part 9 of the Act and regulation 33 of the Regulations apply to that decision.

 

 

PART 8  -  MISCELLANEOUS NOTICES

 

 

8.1     Redirect or repair sprinkler

Where a lawn or a garden is being watered with a sprinkler which is on the lawn or the garden, in a manner which causes or may cause an inconvenience or obstruction to any person using a thoroughfare, the local government may give a notice to the owner or the occupier of the land abutting on the lawn or the garden, requiring the owner or the occupier or both to move or alter the direction of the sprinkler or other watering equipment.

 

8.2     Remove hazardous plants

(1)     Where a plant in a garden creates or may create a hazard for any person using a thoroughfare, the local government may give a notice to the owner or the occupier of the land abutting on the garden to remove, cut, move or otherwise deal with that plant so as to remove the hazard.

 

(2)     Subclause (1) does not apply where the plant was planted by the local government.

 

8.3     Repair damage to thoroughfare

Where any portion of a thoroughfare has been damaged, the local government may by notice to the person who caused the damage order the person to repair or replace that portion of the thoroughfare to the satisfaction of the local government.

 

8.4     Remove thing unlawfully placed on thoroughfare

Where any thing is placed on, under, over or in a thoroughfare in contravention of this local law, the local government may by notice in writing to the owner or the occupier of the property which abuts on that portion of the thoroughfare where the thing has been placed, or such other person who may be responsible for the thing being so placed, require the relevant person to remove the thing.

 

 

 

PART 9  -  ENFORCEMENT

 

 

Division 1  -  Notices given under this local law

 

9.1     Offence to fail to comply with notice

Whenever the local government gives a notice under this local law requiring a person to do any thing, if the person fails to comply with the notice, the person commits an offence.

 

9.2     Local government may undertake requirements of notice

Where a person fails to comply with a notice referred to in clause 9.1, the local government may do the thing specified in the notice and recover from that person, as a debt, the costs incurred in so doing.

 

 

 

 

Division 2  -  Offences and penalties

 

9.3     Offences

(1)     Any person who fails to do anything required or directed to be done under this local law, or who does anything which under this local law that person is prohibited from doing, commits an offence.

 

(2)     Any person who commits an offence under this local law is liable, upon conviction, to a penalty not exceeding $5,000, and if the offence is of a continuing nature, to an additional penalty not exceeding $500 for each day or part of a day during which the offence has continued.

 

 

9.4     Prescribed offences

(1)     An offence against a clause specified in Schedule 1 is a prescribed offence for the purposes of section 9.16(1) of the Act.

 

(2)     The amount of the modified penalty for a prescribed offence is that specified adjacent to the clause in Schedule 1.

 

(3)     For the purpose of guidance only, before giving an infringement notice to a person in respect of the commission of a prescribed offence, an authorised person should be satisfied that –

 

(a)     commission of the prescribed offence is a relatively minor matter; and

 

(b)     only straightforward issues of law and fact are involved in determining whether the prescribed offence was committed, and the facts in issue are readily ascertainable.

 

 

9.5     Forms

Unless otherwise specified, for the purposes of this local law -

 

(a)      where a vehicle is involved in the commission of an offence, the form of the notice referred to in section 9.13 of the Act is that of Form 1 in Schedule 1 of the Regulations;

 

(b)      the form of the infringement notice given under section 9.16 of the Act is that of Form 2 in Schedule 1 of the Regulations; and

 

(c)      the form of the notice referred to in section 9.20 of the Act is that of Form 3 in Schedule 1 of the Regulations.

 

 


SCHEDULE 1

 

 

PRESCRIBED OFFENCES

 

CLAUSE

DESCRIPTION

MODIFIED PENALTY $

2.1(a)

Plant any plant on thoroughfare

200

2.1(b)

Remove or damage tree

300

2.1(c)

Remove or damage garden

300

2.1(d)

Take injure or kill fauna

300

2.1(e)

Place any thing on thoroughfare

200

2.1(f)

Damage or interfere with thoroughfare

300

2.1(g)

Play sport so as to cause danger

200

2.1(h)

Within a mall etc. ride bicycle etc.

200

2.2(1)(a)

Digging a trench through a kerb or path without a permit

300

2.2(1)(b)

Throwing or placing anything on a verge without a permit

250

2.2(1)(c)

Causing obstruction to vehicle or person on thoroughfare without a permit

250

2.2(1)(d)

Causing obstruction to water channel on thoroughfare without a permit

300

2.2(1)(e)

Placing or draining offensive fluid on thoroughfare without a permit

300

2.2(1)(f)

Damage a thoroughfare

300

2.2(1)(g)

Lighting a fire on a thoroughfare without a permit

400

2.2(1)(h)

Felling tree onto thoroughfare without a permit

300

2.2(1)(i)

Installing pipes or stone on thoroughfare without a permit

300

2.2(1)(j)

Installing a hoist or other thing on a structure or land for use over a thoroughfare without a permit

300

2.2(1)(k)

Creating a nuisance on a thoroughfare without a permit

250

2.2(1)(l)

Placing a bulk rubbish container on a thoroughfare without a permit

250

2.2(1)(m)

Interfering with anything on a thoroughfare without a permit

300

2.3(1)

Consumption or possession of liquor on thoroughfare

200

2.4(1)

Failure to obtain permit for temporary crossing

250

2.5(2)

Failure to comply with notice to remove crossing and reinstate kerb

350

2.9(1)

Installation of verge treatment other than permissible verge treatment

300

2.10

Failure to maintain permissible verge treatment or placement of obstruction on verge

250

2.11

Failure to comply with notice to rectify default

250

2.17(2)

Failure to comply with sign on public place

200

2.19(1)

Driving or taking a vehicle on a closed thoroughfare

300

3.2(1)

Placing advertising sign or affixing any advertisement on a thoroughfare without a permit

300

3.2(3)

Erecting or placing of advertising sign in a prohibited area

300

4.1(1)

Animal or vehicle obstructing a public place

200

4.2(2)(a)

Animal on thoroughfare when not led, ridden or driven

200

4.2(2)(b)

Animal on public place with infectious disease

200

4.2(2)(c)

Training or racing animal on thoroughfare in built-up area

200

4.2(3)

Horse led, ridden or driven on thoroughfare in built-up area

200

4.6

Person leaving shopping trolley in public place other than trolley bay

200

4.7(2)

Failure to remove shopping trolley upon being advised of location

200

5.2(1)

Conducting of stall in public place without a permit

350

5.3(1)

Trading without a permit

350

5.8(1)(a)

Failure of stallholder or trader to display or carry permit

200

5.8(1)(b)

Stallholder or trader not displaying valid permit

200

5.8(1)(c)

Stallholder or trader not carrying certified scales when selling goods by weight

200

5.8(2)

Stallholder or trader engaged in prohibited conduct

200

5.10

Performing in a public place without a permit

200

5.11(2)

Failure of performer to move onto another area when directed

200

5.14

Failure of performer to comply with obligations

200

5.16

Establishment or conduct of outdoor eating facility without a permit

350

5.18

Failure of permit holder of outdoor eating facility to comply with obligations

200

5.20(1)

Use of equipment of outdoor eating facility without purchase of food or drink from facility

80

5.20(2)

Failure to leave outdoor eating facility when requested to do so by permit holder

80

5.21(1)

Failure of permit holder to temporarily remove facility

150

6.5

Failure to comply with a condition of a permit

200

6.9

Failure to produce permit on request of authorised person

200

9.1

Failure to comply with notice given under local law

300

 

Any other offence not listed

150

 

 


 

 

Dated ................................... 2014 .

 

The Common Seal of the                   }

City of Busselton}

was affixed by authority of a              }

resolution of the Council in the          }

presence of:                                      }

 

 

 

 

Mayor                                                                                Chief Executive Officer


Council                                                                                      51                                                         24 September 2014

10.3           Policy and Legislation Committee - 21/08/2014 - REVIEW OF DELEGATIONS TO CHIEF EXECUTIVE OFFICER, OTHER OFFICERS AND COMMITTEES

SUBJECT INDEX:

Development Services and Policy

STRATEGIC OBJECTIVE:

Governance systems that deliver responsible, ethical and accountable decision-making.

BUSINESS UNIT:

Development Services and Policy

ACTIVITY UNIT:

Strategic Planning and Development

REPORTING OFFICER:

Manager, Development Services - Anthony Rowe

AUTHORISING OFFICER:

Director, Planning and Development Services - Paul Needham

VOTING REQUIREMENT:

Simple Majority

ATTACHMENTS:

Attachment a   Existing Delegations

Attachment b    Replacement Delegations

Attachment c    Report Schedule  

 

This item was considered by the Policy and Legislation Committee at its meeting on 21 August 2014, the recommendations from which have been included in this report. 

 

PRÉCIS

 

Endorsement of the recommendation of this report will amend or replace various delegations presently applicable to the City’s administration of its development planning and building control responsibilities, to align with and be empowered by the City’s new Local (Town) Planning Scheme 21.

 

This report also establishes a new reporting framework to provide Councillors oversight over the delegated authority and the performance of the City in terms of customer service and the attainment of strategic objectives as provided by the City’s Development Services and Policy functions.

 

 

BACKGROUND

 

Current delegations under Local (Town) Planning Scheme 20, will no longer be valid upon the commencement of the City’s new Local (Town) Planning Scheme 21.

 

The City has not undertaken a comprehensive review of its delegations, affecting its Development Services and Policy functions, since the introduction of its District Town Planning Scheme No 20, Gazetted 7 September 1999.  It has nonetheless made many minor refinements most notably to align with the introduction of the Planning and Development Act 2005 and recently the Building Act 2011.

 

The intended outcome of this review is to maintain the current delegation setting and approach, only to recast and reassign these delegations consistent with the terms of the City’s new Local (Town) Planning Scheme 21.

 

STATUTORY ENVIRONMENT

 

The following list of statutory items is not comprehensive, but reflects the most frequently encountered, and current, statutory items.

 

The following statutes identified and comments made are relevant to framing the delegations set.

 

Local Government Act 1995

 

Section 5.42 enables the Council to delegate the powers and duties conferred to local government, with the exception of the items listed in s.5.43.

 

An absolute majority of Council is required to approve the delegation of responsibility.

 

The delegation may be general or as otherwise provided in the instrument of delegation.

Section 5.42 (b) explicitly provides that Council may delegate, Planning and Development Act 2005 section 214(2), (3) and (5).  These sections (214(2), (3) and (5)) relate to planning enforcement and only to the act of issuing an interim order and the directions required for remedy of an unauthorised development.

 

Planning and Development Act 2005

 

Section 90 of the Planning and Development Act 2005 establishes a hierarchy of legislation and subordinate legislation. 

 

Section 162, Planning and Development Act 2005 provides that no development should be undertaken except with approval where described by the Scheme.

 

The Planning and Development Act 2005 delegates the approval of land divisions to the WAPC.  The WAPC is also given the power sub delegate to the local government, currently Strata assessments.

 

The Planning and Development Act 2005 also prescribes developments with a value greater than $7 million must be determined by a Development Assessment Panel. 

 

City of Busselton Local (Town) Planning Scheme 21

 

The City of Busselton Local (Town) Planning Scheme 21 at Clause 12.2, enables delegation of any powers and duties under the Scheme to the CEO, together with an expressed ability for the CEO to sub delegate to other officers.  Potentially everything, but the power to delegate to the CEO itself, can be delegated.  It also facilitates retention of powers by the City through exemptions or conditions that can be made in the delegation.

 

The new Scheme, consistent with section 5.45 and 5.46 of the Local Government Act 1995, requires that delegations have effect for the time specified or until revoked, that a register of delegations is to be kept, and that delegations are to be reviewed annually.

 

Building Act 2011

 

Section 127(1) of the Building Act 2011, provides that local government is a permit authority that may delegate all its powers to the CEO.  Section 127(6A) of the Building Act 2011 enables the CEO to sub delegate any power or duty of the City under the Act, subject to prescribed qualifications.  The Act prescribes essential qualifications of persons and only these persons are empowered to make determinations under the Act. 

 

Liquor Control Act 1988

 

Section 40 requires local government as planning authority to certify whether a premises complies with planning laws.  The authority to delegate to the CEO is in turn provided by the general application of Section 5.42 of the Local Government Act 1995.

 

Motor Vehicle Repairers Act 2003

 

Section 58 of the Motor Repairers Act requires the local government as the planning authority to certify whether the proposed use of the premises will be permitted under the written laws relating to planning in its area. The authority to delegate to the CEO is in turn provided by the general application of Section 5.42 of the Local Government Act 1995.

 

RELEVANT PLANS AND POLICIES

 

This review of delegations clarifies authorisations in the conduct of existing policies.  It does not change any City policy.

 

FINANCIAL IMPLICATIONS

 

The City presently provides extensive delegation with regard to its Development Services and Policy functions.  The focus of this review is efficiency, accountability and alignment to the new Scheme 21, working within existing resources. 

 

There are no adverse financial implications that would result from the officer recommendation in this report.

 

STRATEGIC COMMUNITY OBJECTIVES

 

The Officer’s recommendation of this report reflects Community Objective 5.2 of the Strategic Community Plan 2013;

 

“Growth is managed sustainably and our environment is protected and enhanced as we develop.”

 

RISK ASSESSMENT

 

An assessment of the potential implications of implementing the officer recommendation has been undertaken using the City’s risk assessment framework. The assessment identifies ‘downside’ risks only, rather than ‘upside’ risks as well. Risks are only identified where the residual risk, once controls are identified, is ‘medium’ or greater.

 

Risk

Controls

Consequence

Likelihood

Risk Level

Decision made under delegation inconsistent with Council or community views.

 

Ensure there is clarity and certainty of responsibility in expressed delegations and authorisation, and ensure regular and meaningful communication with the Council.

Major

 

Possible

 

 

High

 

 

 

 

 

 

 

 

 

 

 

CONSULTATION

 

Regard has been given to the Department of Local Government Operational Guidelines Number 17 – Delegations.

 

The author has consulted with the Department of Local Government and the West Australian Local Government Association and the West Australian Department of Planning.

 

OFFICER COMMENT

 

The purpose of delegation is both one of efficiency and good governance as well as ensuring a high level of customer service.  Accountability is an important part of good delegation practice, aside from a minimum report requirement.  The following section is therefore divided into two parts.  Part A addresses the rationale leading to a new set of delegations for Development Services, and Part B describes a new reporting structure.

 

PART A -              Rationale for a new set of delegations for Development Services

 

Delegating Scheme 21

 

Scheme 21 will replace Scheme 20 and because of this a new set of delegations specific to Scheme 21 is required.

 

The City’s Scheme 20 described that any delegation that was made by Council was direct to individual officers, it did not provide for sub-delegation.  As a consequence the delegations listed each officer’s position to whom the Council had directly delegated its responsibility.

 

The City’s new Scheme 21 facilitates delegation of all powers and duties under the Scheme to the CEO, who may then sub-delegate to another officer, including a person and not just a position.  This is the model that applies in most town planning schemes.

 

There is now an opportunity to assign delegations broadly to the CEO, and by sub-delegation from the CEO, narrowly and dynamically to an officer commensurate with the skills and responsibility expected of their position.  This is an advantage over the arrangement of Scheme 20, as it enables greater accuracy in effective delegation and changes can be made immediately as people and positions change or as trends emerge requiring a higher sophistication of assessment.

 

Following a Separation of Powers

 

The proposed delegations for Scheme 21 have followed the concept of Separation of Powers; namely to retain the primacy of Council in the endorsement of Policy (guiding the future development of the City) or regarding significant financial decisions i.e. agreements. 

 

Decisions to be retained by Council are listed under Exemptions in TPD1.

 

The proposed approach is to assign to the CEO, broadly in the first instance, with exceptions consistent with a Separation of Powers model.  The CEO’s sub-delegation to officers can then be specific and tailored to the responsibility and position level of the delegator’s job description and overall competence.  This provides greater certainty and an ability to match and manage risk to appropriate levels of experience.

 

Importantly, the proposed delegation to the CEO retains the ability for the CEO to exercise discretion to return matters to the Council. 

 

Delegation subject to certain conditions

 

TDP 1 also includes under Conditions the parameters for certain matters to be circulated to Councillors’ providing an opportunity to “call in” for a Council decision. There are no changes proposed to those conditions.

 

General refinements

 

Aside from changes required by the implementation of Scheme 21, this also provides an opportunity to rationalise, make corrections and ensure an appropriate scope of delegation relating to other associated Acts.  These are summarised below:

 

§  Broaden the delegation to the CEO under the Building Act 2011 and by sub delegation reinstating the delegation of R-Code assessments to Building Surveyors, which addresses an inadvertent deletion with the introduction of the Building Act 2011.

§  Update terminology to reflect the Liquor Control Act 1988 and template presentation.  Replace LL1 With LCA1.

 

§  Update STRATA 1 to clarify the delegation is from the WAPC to Council, and revise presentation of Template.  Preplace STRATA 1 with STA 1.

 

§  Rationalise all delegations affecting the Planning Scheme into one delegation TDP1.  Replace TPD 2 and TPD3 with an expanded TPD1.

 

§  TPD4 addresses the clearance of subdivision conditions but this is unnecessary as it is administrative and an internal work process that is not delegated from Council.  Delete TPD4.

 

§  Make explicit Council, as the responsible planning authority, has delegated the assessment and issue of a certificate of compliance pursuant to the Motor Vehicle Repairers Act 2003.  New delegation MVA1.

 

PART 2  Accountability and Reporting

 

An advantage of delegation is that it provides the time for Council to separate itself from individual decisions and take an overview approach to formulate policy and monitor outcomes to align with its goals.  Integral to delegation, and the ability to refine policy is an effective monitoring and reporting framework.  The following arrangement is recommended to support the recommended delegations for Scheme 21.

 

Current arrangements

 

Councillors are presently informed by the fortnightly Councillor Information Bulletin about delegated decisions, and delegations are reviewed annually.  The City also receives half yearly performance reports against KPIs. In addition, generally on a monthly basis Councillors are given an informal, verbal briefing on development proposals that are considered likely to be controversial or be of significant community interest.

 

Proposed Arrangement

 

A reliable reporting framework, articulating the exercise of delegations and service performance is suggested.  Information that provides the context of the relationship between individual decisions to that of the City’s projected growth target and long term financial plan is also suggested to highlight areas where policy refinement may be required. 

 

A proposed arrangement, and its features and purpose is described as follows:

 

Monthly CIB – (No narrative)

 

*        Delegated decisions, and policy responses made (invitation and response).

 

*        Scheme Amendment status.

 

*        SAT appeal status.

 

*        (Confidential) Notices issued and legal proceedings.

 

Purpose         - to provide City accountability in the exercise of delegations and the progress of issues that had been subject of Council determination.

Output – Table.

 

Quarterly – (Performance Assessment narrative)

 

*        On time performance % Planning and % Building, approved against the statutory and City target, comparing the previous 8 quarters.

 

*        Building permits issued, percentage new dwellings, commercial and alterations, comparing the previous 8 quarters.

 

*        Subdivision status, illustrating the ratio of approved lots, against vacant lots available.

 

Purpose      - to provide accountability for the efficient administration of the Planning and Building Acts. 

 

          to provide a quarterly snap shot of progress against City rates of growth indicators for various development types.

 

Output – Graphs, DA Briefing.

 

It is also envisaged that informed briefings, generally on a monthly basis would continue.

 

Annually – (Performance Assessment narrative)

 

Additional dwellings added, compared to the previous 5 years.

 

Additional allotments added, compared to the previous 5 years.

 

Value of buildings approved, compared to the previous 5 years and CPI.

 

Median house price and median allotment price Busselton and Perth, compared to the previous 5 years.

 

Available allotment stock, Busselton and (4) key centres SW, and Perth compared to the previous 5 years. 

 

Change in property ownership, compared to the previous 5 years.

 

Prosperity Index Perth and Busselton, compared to the previous 5 years.

 

Purpose      - to provide analysis of the year against growth targets and the effectiveness of desired rate of growth policy initiatives, and implications for the long term financial plan (a continuous improvement model).

 

Output – Graphs, Report, Council Briefing.

 

CONCLUSION

 

The proposed delegations provide an appropriate authority for delegated determination of decisions that the City needs to make under the Planning and Development Act 1995 and the Building Act 2011 and associated legislation, essentially replicating the existing approach. To ensure a continued ability to cope with sustained high levels of development activity, it is imperative that current, high levels of delegation are maintained. It takes substantially longer to make decisions through Council processes (ordinarily, at least one month needs to be added to the decision-making timeframe), and the amount of staff time and resources involved with decision-making by the Council is typically several times that involved with delegated decisions. In particular, decision-making by the Council requires the involvement of senior staff (Director in particular), and prevents those senior staff from applying their time to strategic planning, staff management and development, and operational/process improvements – all of which have much greater potential benefit for the community as a whole than does involvement in decision-making on individual development proposals.

 

OPTIONS

 

1.            Accept the Officer Recommendation.

2.            Accept the Officer Recommendation subject to amendments.

3.            Accept the Officer Recommendation subject to the inclusion in TPD1, as a conditional exemption in Determination of Applications, the listing of Transportable and Relocated Building, as a class of development to be determined either by the Council, or under delegation only once a referral procedure similar to that required for applications for reconsideration has occurred. As there is not suitable, standard definition of ‘transportable’ or ‘relocated’, those concepts would need to be appropriately defined, but the legal clarity required for those terms as a limit on delegation would be less than what would be required to properly define those terms in a town planning scheme.

4.            Reject.

 

TIMELINE FOR IMPLEMENTATION OF OFFICER RECOMMENDATION

 

The delegations contained within the Officers Recommendation are to become effective from the date of Gazettal of City of Busselton Local (Town) Planning Scheme 21.

 

COMMITTEE RECOMMENDATION AND OFFICER RECOMMENDATION

ABSOLUTE MAJORITY DECISION OF COUNCIL REQUIRED

 

That the Council, effective as of the date that the City of Busselton Local (Town) Planning Scheme 21 comes into force:

 

1.         Revokes the following existing delegations

a)    BA 1

b)    STRATA 1

c)    TPD 1

d)    TPD 2

e)    TPD 3

f)     TPD 4

 

2.         Delegates to the CEO of the City of Busselton the instruments of delegation contained within Attachment B being:

2.1.     To undertake the powers of the local government pursuant to the Building Act 2011, under s.127 and to appoint authorised persons under s.96;

 

2.2.     To undertake the powers and duties of local government under cl 12.2 of the City of Busselton Local (Town) Planning Scheme 21;

 

2.3.     To issue certificates of compliance with planning laws, under Section 40 of the Liquor Control Act 1988;

 

2.4.     To issue certificates of compliance with planning laws, under Section 58(2) the Motor Vehicle Repairers Act 2003; and

 

2.5.     To issue a certificate of approval under s.25 of the Strata Titles Act 1985, as delegated by the WAPC.

 

3.         Amends the City Delegation Register to reflect 1 and 2.

 

4.       Adopts the report schedule as identified in Attachment C.

 

 


Council

57

24 September 2014

10.3

Attachment a

Existing Delegations

 

 

 

 

 

 

Existing Delegations to be revoked

 

 

 

 

 

 

 

 


City Busselton Cropped logo

INSTRUMENT OF DELEGATION

 

Ref No

Act Ref

Delegate

Delegation Subject

BA1

S127 of Building Act 2011

Chief Executive Officer

Director, Planning and Development Services

Manager, Development Services

Building Services Coordinator

Senior Building Surveyor

Building Surveyor(s)

Building Administration Officer(s)

Powers of the Local Government pursuant to the Building Act 2011

 

 

Delegator

 

Council.

 

Power/Duty

 

To undertake the powers of the local government pursuant to the Building Act 2011.

 

Conditions

 

Subject to the direction of the Chief Executive Officer and any policies of the Council.

 

Statutory Framework

 

Section 127 Building Act 2011.

 

Verification

 

Council Resolution

C1110/334

 

Review Requirements

 

At Council's discretion as necessary (no statutory requirement).

 

Review Dates

 

26 October 2011 (implementation)


City Busselton Cropped logo

INSTRUMENT OF DELEGATION

 

Del Ref No

Delegate

Delegation Subject

STRATA1

Director, Planning and Development Services

Issue of Certificates (Strata Titles)

Manager, Development Services

Statutory Planning Coordinator

Strategic Planning Coordinator

Building Services Coordinator

Senior Building Surveyor

 

Delegator

 

Council.

 

Power/Duty

 

Pursuant to the provisions of Section 23 of the Strata Titles Act 1985, the delegates are authorised to issue the appropriate certificates in respect to buildings as may be shown on a strata plan to be lodged for registration under the Act, subject to:

·    The buildings shown on the strata plan being first inspected to ensure compliance with town planning, health and engineering requirements as provided for in the Shire of Busselton District Town Planning Scheme and Residential Design Codes and Shire Policies;

and wherein the opinion of the delegate:

·    The buildings are of sufficient standard and suitable to be divided into lots pursuant to the Strata Titles Act 1985.

 

Conditions

 

Nil.

 

Statutory Framework

 

Council is exercising its power of delegation under Section 23(4) of the Strata Titles Act 1985.

 


Verification

 

Council Resolution

C1106/199

 

Council Resolution

C0806/188

 

Council Resolution

C0709/215

 

Council Resolution

C969/0425

 

Review Requirements

 

At Council's discretion as necessary (no statutory requirement).

 

Last Review Date

 

22 June, 2011

 

25 June, 2008.

 

26 September, 2007.

 

9 February, 2000.

 

Notes of Alterations

 

22/06/2011 - Position titles updated and rewording of the power and duty to more accurately reflect the requirements.

 

25/06/08 - Update to positions.  Removal of Manager, Strategic Planning; Manager, Statutory Planning and Manager, Building Services.  Inclusion of Manager, Development Services; Coordinator, Statutory Planning; Coordinator, Strategic Planning and Coordinator, Building Services.

 

26/09/07 - Position of Senior Building Surveyor added to delegation.  Change of "Council's Codes and Policies" to "Residential Design Codes and Shire Policies".

 

Minor change to position title of Director.  Changed from Director, Planning and Building Services to Director, Lifestyle Development.

 

 


City Busselton Cropped logo

INSTRUMENT OF DELEGATION

 

Del Ref No

Delegate

Delegation Subject

TPD1

Chief Executive Officer

Advertising and Determining Applications for Planning Consent

 

Director, Planning and Development Services

Manager, Development Services

Statutory Planning Coordinator

Strategic Planning Coordinator

Building Services Coordinator

Senior Land Use Planner

Senior Development Planner

Senior Planning Officer

 

Delegator

 

Council.

 

Power/Duty

 

1.         Advertising of Applications for Planning Consent

 

·        Determine the requirement for advertising of an application for Planning Consent pursuant to Clauses 12(1)(d) and 14(1) of District Town Planning Scheme No. 20.

 

·        Determine those landowners to whom notice of an application for Planning Consent required to be advertised shall be provided pursuant to Clause 12(1)(d) and 14(1) of District Town Planning Scheme No. 20.

 

·        Where an application is subject to a requirement for public notification, make available information on and submitted in support of that application, for the purpose of defining the land to which the application relates and the nature of the proposed development.

 

2.         Consideration of Applications for Planning Consent

 

Determine applications for Planning Consent made in accordance with Clause 11 of the Scheme and/or Statement of Planning Policy No. 1 - Residential Design Codes irrespective of whether objections have been received and impose conditions or grounds of refusal as he/she sees fit.


 

3.         Determine requests for reconsideration

 

Determine requests for reconsideration of a refusal to grant Planning Consent or conditions imposed on a consent made in accordance with Clause 14(5) of the Scheme where no resolution has been passed or no Notice of Motion lodged, which is yet to be determined, that would require the matter to be referred to Council for determination.

 

Conditions

 

General

Officers to whom delegated authority is granted are not to exercise that authority in circumstances where the Chief Executive Officer has, following consultation with the Mayor, requested that a matter be referred to Council for consideration or determination.

 

Reconsiderations

Prior to the determination of any application for reconsideration, the CEO shall ensure that a copy of the draft letter of determination has been provided to all Councillors and the applicant, and for Councillors to be given a period of not less than 7 days to request the CEO to refer the matter to Council for determination.

 

Statutory Framework

 

Council is exercising its power of delegation under Clause 95 (Delegation of Authority) of the (City) Shire of Busselton District Town Planning Scheme No 20.

 

Verification

 

Council Resolution

C1106/199

 

Council Resolution

C1003/073

 

Council Resolution

C0806/188

 

Council Resolution

C0709/215

 

Council Resolution

C0608/266 (addition of Senior Development Planner)

 

Council Resolution

C0310/432


Review Requirements

 

At Council's discretion as necessary (no statutory requirement).

 

Review Dates

 

22 June, 2011

 

10 March, 2010

 

25 June, 2008

 

26 September, 2007

 

9 August, 2006

 

22 October, 2003

 

Related Documents

 

Planning and Development Act 2005

 

Notes of Alterations

 

22/06/2011 - Update to position titles and addition of Senior Planning Officer.

 

10/03/2010 - Two conditions were placed on the delegation by the Council to enable matters to be determined by the Council in certain circumstances.

 

25/06/08 - Positions updated.  Removal of Manager, Strategic Planning; Manager, Statutory Planning; Manager, Building Services and Senior Planning Officer.  Inclusion of Manager, Development Services; Coordinator, Statutory Planning; Coordinator, Strategic Planning; Coordinator, Building Services.

 

26/09/07 - Positions of Senior Planning Officer, Major Projects and Appeals; Senior Building Surveyor; Planning Officer(s) Statutory; and Planning Officer(s) Strategic removed from delegation.  Position of Senior Planning Officer added to delegation.  Title of delegation changed to reflect that there is no need for authority to respond to the Western Australian Planning Commission on applications for subdivision and licences (ie this is a referral process and is not a determination that requires delegation from Council).  Complete update of the power/duty section of the delegation. 

 

09/08/2006 - New position of Senior Development Planner added on 9 August, 2006, by Council resolution number C0608/266.

 

 


City Busselton Cropped logo

INSTRUMENT OF DELEGATION

 

Del Ref No

Delegate

Delegation Subject

TPD2

 

 

Chief Executive Officer

Advertising Draft Development Guide Plans and Detailed Local Area Plans.

Determining Draft Development Guide Plans and Detailed Local Area Plans.

Director, Planning and Development Services

 

 

Delegator

 

Council.

 

Power/Duty

 

Development Guide Plans and Detailed Local Area Plans.

 

1.         Determine the requirement for advertising for public comment a draft Development Guide Plan and where considered necessary, a draft Detailed Local Area Plan pursuant to District Town Planning Scheme No. 20.

 

2.         Determine applications for adoption or endorsement of Development Guide Plans and/or Detailed (Local) Area Plans irrespective of whether objections from the public have been received and impose conditions or alternatively grounds of refusal as required.

 

Conditions

 

Officers to whom delegated authority is granted are not to exercise that authority in circumstances where the Chief Executive Officer has, following consultation with the Mayor, requested that a matter be referred to Council for consideration or determination.

 

Prior to determining any application adoption or endorsement of a Development Guide Plan and/or Detailed (Local) Area Plan, the Director, Planning and Development Services shall ensure that a copy of the respective Plan has been provided to all Councillors and for Councillors to be given a period of not less than 14 days to request the Director to refer the respective Plan to Council for determination.

 


Statutory Framework

 

Council is exercising its power of delegation under Clause 95 (Delegation of Authority) of the (City) Shire of Busselton District Town Planning Scheme No 20.

 

Verification

 

Council Resolution

C1106/199

 

Council Resolution

C1003/073

 

Council Resolution

C0709/215

 

Council Resolution

C0403/103

 

Council Resolution

C0310/432

 

Review Requirements

 

At Council's discretion as necessary (no statutory requirement).

 

Review Dates

 

22 June, 2011

 

10 March, 2010

 

26 September, 2007

 

24 March, 2004

 

Related Documents

 

Planning and Development Act 2005

 

Notes of Alterations

 

22/06/2011 - Update to position titles.

 

10/03/2010 - Council imposed a general condition requiring matters to be referred to Council for determination in certain circumstances.

 

Formerly TPD8.

 

26/09/2007 - Minor changes to the wording of the conditions by removing the word draft before Development Guide Plan and Detailed Local Area Plan and making reference to an application "for adoption or endorsement of".  Complete update of the power/duty section of the delegation. 

 

24/03/2004 - Delegation originally (22 October, 2003) to Chief Executive Officer; Director, Planning and Building Services; Manager, Strategic Planning and Manager, Statutory Planning and was only for Development Guide Plans.  Review on 24 March, 2004 (C0403/103) resulted in the inclusion of Detailed Local Area Plans to the delegation and the removal of authority from the Manager, Strategic Planning and Manager, Statutory Planning. (Also Director's position name updated to reflect new name of Directorate).

 


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INSTRUMENT OF DELEGATION

 

Del Ref No

Delegate

Delegation Subject

TPD3

Chief Executive Officer

Advertising Extension for Town Planning Scheme Amendments, Development Guide Plans, Structure Plans, Detailed Area Plans and Policies

Director, Planning and Development Services

 

 

Delegator

 

Council.

 

Power/Duty

 

To extend the advertising period for town planning scheme amendments, development guide plans, structure plans, detailed area plans and policies where considered necessary to provide for adequate consultation and/or accommodate specific community consultation exercises (eg special electors meetings, workshops etc).  

 

Conditions

 

Officers to whom delegated authority is granted are not to exercise that authority in circumstances where the Chief Executive Officer has, following consultation with the Mayor, requested that a matter be referred to Council for consideration or determination.

 

Statutory Framework

 

Council is exercising its power of delegation under Clause 95 (Delegation of Authority) of the (City) Shire of Busselton District Town Planning Scheme No 20.

 

Verification

 

Council Resolution

C1106/199

 

Council Resolution

C1003/073

 


Council Resolution

C0506/202

 

Review Requirements

 

At Council's discretion as necessary (no statutory requirement).

 

Last Review Date

 

22 June, 2011

 

10 March 2010

 

22 June 2005

Implementation Date.

 

Related Documents

 

Planning and Development Act 2005

 

Notes of Alterations

 

22/06/2011 - Update to position titles.

 

10/03/2010 - Council imposed a general condition requiring matters to be referred to Council for determination in certain circumstances.

 

Formerly TPD9.


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INSTRUMENT OF DELEGATION

 

Del Ref No

Delegate

Delegation Subject

TPD4

Chief Executive Officer

Subdivision and Development Design

Director, Planning and Development Services

Director, Engineering and Works Services

Manager, Engineering and Facilities Services

 

Delegator

 

Council.

 

Power/Duty

 

To approve plans and impose Council’s accepted Standards and Specifications on subdivisions and developments and similar works done by the City.  

 

Conditions

 

Officers to whom delegated authority is granted are not to exercise that authority in circumstances where the Chief Executive Officer has, following consultation with the Mayor, requested that a matter be referred to Council for consideration or determination.

 

Statutory Framework

 

Council is exercising its power of delegation under Clause 95 (Delegation of Authority) of the (City) Shire of Busselton District Town Planning Scheme No 20.

 

Verification

 

Council Resolution

C1106/199

 

Council Resolution

C1003/073

 

Council Resolution

C0606/214

 


Review Requirements

 

At Council's discretion as necessary (no statutory requirement).

 

Last Review Date

 

22 June, 2011

 

10 March, 2010

 

28 June 2006

Implementation Date.

 

Related Documents

 

Planning and Development Act 2005

(City) Shire of Busselton District Town Planning Scheme No 20

 

Notes of Alterations

 

22/06/2011 - Update to position titles.

 

10/03/2010 - Council imposed a general condition requiring matters to be referred to Council for determination in certain circumstances.

 

Formerly TPD10.

 


Council

71

24 September 2014

10.3

Attachment b

Replacement Delegations

 

 

ATTACHMENT B

 

 

 

 

 

For resolution Absolute Majority to adopt delegations to the CEO contained within.


 

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INSTRUMENT OF DELEGATION

 

Ref No

Act Ref

Delegate

Delegation Subject

BA1

s.127 of Building Act 2011

 

 

s.96 of Building Act 2011

 

Chief Executive Officer

 

Powers of the Local Government pursuant to the Building Act 2011

 

Power to appoint a local government employee as an Authorised Person

 

Delegator

 

Council.

 

Power/Duty

 

1.                   To undertake the powers of the local government pursuant to the Building Act 2011.

 

Conditions

 

Nil

 

Statutory Framework

 

Council is exercising its power of delegation under section 127 of the Building Act 2011 and the delegation of Authorised persons pursuant to section 96(3) of the Building Act 2011.

 

 

127 . Delegation: special permit authorities and local governments

(1)        A special permit authority or a local government may delegate any of its powers or duties as a permit authority under another provision of this Act.

(3)        A delegation of a local government’s powers or duties may be only to a local government employee.

(6A)     The CEO of a local government may delegate to any other local government employee a power or duty of the local government that has been delegated to the CEO under this section but in the case of such a power or duty —

(a)    the CEO’s power under this subsection to delegate the exercise of that power or the discharge of

that duty; and

(b)    the exercise of that power or the discharge of that duty by the CEO’s delegate,

are subject to any conditions, qualifications, limitations or exceptions imposed by the local

government on its delegation to the CEO.


 

96 . Authorised persons

(3)        A local government may, by instrument in writing, designate a person employed by the local government under the Local Government Act 1995 section 5.36, as an authorised person for the purposes of this Act in relation to buildings and incidental structures located, or proposed to be located, in the district of the local government.

 

Verification

 

Council Resolution

#######

 

Council Resolution

C1110/334

 

Review Requirements

 

At Council's discretion as necessary (no statutory requirement).

 

Review Dates

 

 

26 October 2011 (implementation)

 

######### 2014


 

City Busselton Cropped logo

INSTRUMENT OF DELEGATION

 

Del Ref No

Act Ref

Delegate

Delegation Subject

TPD 1

s.162 Planning and Development Act 2005

 

cl. 12.2 City of Busselton Local (Town) Planning Scheme 21

 

Chief Executive Officer

Determining Applications for Planning Consent

 

 

 

Delegator

 

Council.

 

Power/Duty

 

1.         To undertake the powers and duties of local government under cl 12.2 of the City of Busselton Local (Town) Planning Scheme 21, subject to the following Exemptions, Limitation and Conditions.

 

Statutory Framework

 

Council is exercising its power of delegation under Section 5.42(1)(a) of the Local Government Act 1995 to delegate to the CEO the discharge of its powers and duties provided for in section 162 of the Planning and Development Act 2005 and clause 12.2 in the City of Busselton Local (Town) Planning Scheme 21.

 

Planning and Development Act 2005

162. No development except with approval

(1)              subject to this act, where a planning scheme or interim development order provides that development referred to in the planning scheme or interim development order is not to be commenced or carried out without approval being obtained upon the making of a development application, a person must not commence or carry out that development on land to which the planning scheme or interim development order applies unless —

(a)              the approval has been obtained and is in force under the planning scheme or interim development order; and

(b)              the development is carried out in accordance with the conditions subject to which the approval was granted.

 

 

 

 

City of Busselton Local (Town) Planning Scheme 21

12.2        Delegation of Functions

 

12.2.1        The local government may, in writing and either generally or as otherwise provided by the instrument of delegation, delegate to a committee, the Chief Executive Officer (CEO), within the meaning of those expressions under the Local Government Act 1995, the exercise of any of its powers or the discharge of any of its duties under the Scheme, other than this power of delegation.

12.2.2        The CEO may delegate to any employee of the local government the exercise of any of the CEO's powers or the discharge of any of the CEO's duties under clause 12.2.1.

12.2.3        The exercise of the power of delegation under clause 12.2.1 requires a decision of an absolute majority as if the power had been exercised under the Local Government Act 1995.

 

 

Exemptions

 

The following items, identified by Scheme 21, are exempted from the affect of this delegation and are matters in the Description to be determined by Council, or as required by Conditions to be determined by Council.

 

 

Scheme clause

Description

Conditions

2.1

Initiate preparation or amendment of a local (planning) policy.

Nil

2.2.3

Adopt a local (planning) policy and determine to forward to WAPC (2.3.3 (b)).

Nil

2.4

Determine to revoke a local (planning) policy

Nil

4.14

Termination of a non-conforming use

Nil

7.4.10

Determine to adopt a Structure Plan and determine, if it affects subdivision, to forward it to WAPC for endorsement

Nil

7.5.5

Determine to adopt a Development Guide Plan and determine, if it affects subdivision, to forward it to WAPC for endorsement

2

7.6.5

Determine to adopt a Detailed Area Plan and determine, if it affects subdivision, to forward it to WAPC for endorsement

2

7.7.6

Adopt a Developer contribution plan and determine if affecting subdivision to forward to WAPC for endorsement

Nil

8.1.1

Identify places and establish a Heritage List, advise the Heritage Council of Western Australia 8.1.4

Nil

8.1.6

Remove or modify the entry of a place on the heritage list

Nil

8.2.1

Designate a Heritage Area, advise the Heritage Council of Western Australia 8.2.6

Nil

8.3

Enter in to heritage agreement about land or building with agreement of the owner

Nil.

11.3

Determination of Applications

1.1 & 1.2

 

 

 

12.1.1(b)

Determine to acquire land or buildings

Nil

12.1.1(c)

Determine to dispose of land

Nil

12.4

Determination of compensation for injurious affection

Nil

12.5

Determine the purchase or the taking of land

Nil

 

Limitations

 

1.      Application for the subdivision of land (WAPC), but all other powers and duties of local government leading to the determination by the WAPC are delegated including the power to impose Council’s accepted Standards Specifications and Financial Contributions relating to subdivision.

 

2.      Application for determination by the DAP, but all other powers and duties of local government leading to the determination by the DAP are delegated.

 

Conditions

 

1.         Determination of applications

 

1.1       Call ins

 

a.    The CEO may determine an item to be of significance or public interest and refer the matter for Council’s determination.

 

b.    The Mayor may consider an item is of significance or public interest and request the CEO, in writing, to refer it for Council’s determination.

 

1.2       Reconsiderations

 

Prior to the determination of an application for reconsideration the CEO shall ensure that a copy of the reconsideration request, together with a delegated Officers report and Recommendation, is circulated to all Councillors, giving a period of not less than seven (7) days for any Councillor to request the reconsideration be referred for Council’s determination. 

 

A Councillor’s request is to be made in writing to the CEO.

 

Any request will cause the matter to be submitted to the first practicable Council meeting for debate and determination.

 

If no request is received, within the time provided, the matter will proceed to be determined as Recommended in the Officer’s report.

 

2          Adopting a Plan

 

The CEO may refer the Varying a Plan for Council determination, or otherwise is delegated to make a determination once having completed the following procedure.

 

Prior to determining any application or amendment, for adoption or endorsement of a Development Guide Plan and/or Detailed (Local) Area Plan the CEO shall ensure that a copy of the respective Plan, together with a delegated Officers report and Recommendation, is circulated to all Councillors, giving a period of not less than fourteen (14) days for any Councillor to request it be referred for Council’s determination. 

 

A Councillor’s request is to be made by notice in writing to the CEO.

 

Any request will cause the matter to be submitted to the first practicable Council meeting for +9determination.

 

If no request is received, within the time provided, the matter will proceed to be determined as recommended in the officer report.

 

Verification

 

Council Resolution

##########

 

Review Requirements

 

At Council's discretion as necessary (no statutory requirement).

 

Review Dates

 

######## 2014


 

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INSTRUMENT OF DELEGATION

 

 

Ref No

Act Ref

Delegate

Delegation Subject

LCA 1

Liquor Control Act 1988

Chief Executive Officer

 

Section 40 Certificates under the Liquor Control Act 1988

 

Delegator

 

Council.

 

Power/Duty

 

 

To issue certificates of compliance with planning laws, under Section 40 of the Liquor Control Act 1988.

 

Conditions

 

Nil

 

Statutory Framework

 

Council, as the authority responsible for Building and Health as referred to in Section 39 and as responsible for local planning matters Section 40 of the Liquor Control Act 1988, is exercising its power of delegation under Clause 12.2 (Delegation of Authority) of the City of Busselton Local (Town) Planning Scheme No 21.

 

Liquor Control Act 1988

 

40 . Certificate of planning authority as to whether use of premises complies with planning laws

(1)        An application made to the licensing authority for the grant or removal of a licence, or for a change in the use or condition of any premises shall be accompanied by a certificate from the authority responsible for planning matters in the district in which the premises to which the application relates are situated, or are to be situated, unless the licensing authority otherwise determines.

 

 

Verification

Council Resolution

C1106/199

 

Council Resolution

C0806/188

 

Council Resolution

C0709/215

 

Council Resolution

C0608/266

 

Council Resolution

C0310/432

 

Review Requirements

 

At Council's discretion as necessary (no statutory requirement).

 

Review Dates

 

########## 2014

 

22 June, 2011

 

25 June, 2008.

 

14 November, 2007 (administrative).

 

26 September, 2007.

 

9 August, 2006.

 

22 October 2003.

 

 


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INSTRUMENT OF DELEGATION

 

 

Ref No

Act Ref

Delegate

Delegation Subject

MVA1

Motor Vehicle Repairers Act 2003

Chief Executive Officer

 

Section 58(2) Motor Vehicle Repairers Act 2003

 

 

Delegator

 

Council.

 

Power/Duty

 

To issue certificates of compliance with planning laws, under Section 58(2) the Motor Vehicle Repairers Act 2003.

 

Conditions

 

Nil

 

Statutory Framework

 

Council, as the authority responsible for local planning matters as referred to in Section 58 Motor Vehicle Repairers Act 2003, is exercising its power of delegation under Clause 12.2 (Delegation of Authority) of the City of Busselton Local (Town) Planning Scheme No 21.

 

Motor Vehicle Repairers Act 2003

58 . Business licence application to specify premises that comply with planning laws

(2)           A planning certificate is a certificate —

(a)           issued by the authority responsible for planning matters in the district in which the premises are situated; and

(b)           showing that the proposed use of the premises will be permitted under the written laws relating to planning that apply in respect of the premises because the proposed use will either:

(i)             comply with all relevant requirements of those laws; or

(ii)            be a non-conforming use under those laws.

 

Verification

 

Council Resolution

 

#######

 

Review Requirements

 

At Council's discretion as necessary (no statutory requirement).

 

Review Dates

 

######## 2014

 


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INSTRUMENT OF DELEGATION

 

 

Ref No

Act Ref

Delegate

Delegation Subject

STA1

s.25 of the Strata Titles Act 1985

Chief Executive Officer

 

Certificate of Approval

 

Delegator

 

Council.

 

Power/Duty

 

1.         The power to issue a certificate of approval under s.25 of the Strata Titles Act 1985, as delegated by the WAPC s.16.1 Planning and Development Act 2005 (Planning Bulletin 52/2009).

 

Conditions

 

Nil

 

Statutory Framework

 

Council is exercising its power of delegation under Section 5.42(1)(a) of the Local Government Act 1995 to delegate to the CEO provided for in section 16.1 of the Planning and Development Act 2005 and as delegated by the West Australian Planning Commission (Planning Bulletin 52/2009) the discharge of its powers and duties provided in section 25

Strata Titles Act 1985.

 

 

Strata Titles Act 1985

25 . Certificate of Commission

(1)              Subject to this section, every strata plan and every plan of re-subdivision or consolidation for a strata scheme lodged for registration under this act shall be accompanied by a certificate of approval given by the commission unless the proposed subdivision, re-subdivision or consolidation is exempt from the requirement of such a certificate by reason of regulations made under this section.

 

Verification

 

Council Resolution

 

#########

 

Review Requirements

 

At Council's discretion as necessary (no statutory requirement).

 

Review Dates

 

######### 2014

 

 

 

 

 

 

 

 


Council

85

24 September 2014

10.3

Attachment c

Report Schedule

 

 

 

 

 

 

 

 

 

 

Contents, Reporting Schedule, for adoption

 

 

 

 


Development Services Reporting Schedule

 

Monthly CIB – (No narrative)

 

§  Delegated decisions, and policy responses made (invitation and response)

 

§ Scheme Amendment status.

 

§ SAT appeal status.

 

§ (Confidential) Notices issued and legal proceedings.

 

Output - Table

 

Quarterly – (Performance Assessment narrative)

 

§ On time performance % Planning and %Building, approved against the statutory and City target, comparing the previous 8 quarters.

 

§ Building permits issued, percentage new dwellings, commercial and alterations, comparing the previous 8 quarters.

 

§ Land division status, illustrating the ratio of approved lots, against vacant lots available.

 

 

Output – Graphs, DA Briefing

 

Annually – (Performance Assessment narrative)

 

§  Additional dwellings added, compared to the previous 5 years

 

§  Additional allotments added, compared to the previous 5 years

 

§  Value of buildings approved, compared to the previous 5 years and CPI

 

§  Median house price and median allotment price Busselton and Perth, compared to the previous 5 years.

 

§  Available allotment stock, Busselton and (4) key centres SW, and Perth compared to the previous 5 years. 

 

§  Change in property ownership, compared to the previous 5 years.

 

§  Prosperity Index Perth and Busselton, compared to the previous 5 years.

 

Output – Graphs, Report, Council Briefing


Council                                                                                      87                                                         24 September 2014

10.4           Finance Committee - 4/09/2014 - REVIEW OF COUNCIL POLICY – INVESTMENTS (218)

SUBJECT INDEX:

Financial Operations

STRATEGIC OBJECTIVE:

An organisation that is managed effectively and achieves positive outcomes for the community.

BUSINESS UNIT:

Finance and IT Services

ACTIVITY UNIT:

Finance and Information Technology

REPORTING OFFICER:

Financial Compliance Officer - Jeffrey Corker

AUTHORISING OFFICER:

Director, Finance and Corporate Services - Matthew Smith

VOTING REQUIREMENT:

Simple Majority

ATTACHMENTS:

Attachment a   Currently adopted Investment Policy (V8)  

 

This item was considered by the Finance Committee at its meeting on 4 September 2014, the recommendations from which have been included in this report. 

 

PRÉCIS

 

The Council’s Investment Policy (218) was last reviewed in June 2012. It is proposed to make two amendments to the Policy to enhance its functionality, whilst maintaining legislative compliance. The subject amendments relate to the deletion of the three year rolling average balance requirement, and also the deletion of the reference in relation to the domiciling of the 11am ‘on-call’ account.           

 

 

BACKGROUND

 

The Council’s Investment Policy (218) was last before the Council in June 2012. Pursuant to an amendment to the Local Government Act (the Act) prescribing limitations on the institutions that local governments can invest with and the types of investment products that can be used by local governments, the Policy required amendment to reflect these legislative changes. The amended Policy was endorsed by the Council (C1206/154) at this time.

 

In March 2008, the Council resolved (C0803/085) to reword a section of the Policy (Section 1.8) relating to the Base Total Investment Portfolio for Percentage Calculations. This change was instigated at a time when the total balance of funds held in the portfolio was increasing significantly from year to year, and when Council had access to a more expansive range of investment options than the under current restrictive legislative regime.

 

This report proposes further amendments to Section 1.8 of the Investment Policy. 

 

STATUTORY ENVIRONMENT

 

Section 2.7(2)(b) of the Act states that it is the role of the Council to determine the local government’s policies.

 

Section 6.14 of the Act refers to a local government’s power to invest.

 

Regulation 19C of the Local Government (Financial Management) Regulations refers to authorised investments.

 

RELEVANT PLANS AND POLICIES

 

This report makes recommendations in respect of an existing Council Policy.


 

FINANCIAL IMPLICATIONS

 

There are no direct financial implications associated with this report.

 

STRATEGIC COMMUNITY OBJECTIVES

 

This matter aligns with Key Goal Area 6 – ‘Open and Collaborative Leadership’ and particularly Community Objective 6.3 - ‘An organisation that is managed effectively and achieves positive outcomes for the community’.

 

RISK ASSESSMENT

 

The primary risk in investing is the loss of Council funds. Legislative requirements have established very clear restrictions as to which investment options are available to Councils, and the Council’s Investment Policy complies with these requirements. The Investment Policy further mitigates risk through the requirement to spread funds across a number of institutions. Additionally, it limits exposure to individual institutions based upon their credit rating.

 

With the above controls in existence, coupled with monthly reporting to the Finance Committee on Investment performance and compliance with the Policy, it is considered that the risk of loss is acceptable; without the need for further treatment options.  

 

CONSULTATION

 

Not Applicable.

 

OFFICER COMMENT

 

The Council’s current Investment Policy includes the following text as Section 1.8:

 

1.8          Base Total Investment Portfolio Value for Percentage Calculations

 

The base total Investment Portfolio value for all percentage calculations shall be set six monthly as at December 31 and June 30, based upon the average of all investments held for the previous 3 years. The value of any funds held in the 11am type account held with the City’s major banker shall be excluded when verifying compliance with the policy.

 

It is proposed that Section 1.8 be amended to the following:

 

1.8          Base Total Investment Portfolio Value for Percentage Calculations

 

The value of any funds held in an 11am type account, being one that offers higher interest rates than a standard cheque account but maintains same day access to funds; shall be excluded when verifying compliance with this policy.

 

The revision will impact upon the Council’s Investment portfolio in two ways.

 

Firstly, the current clause requires that the base total Investment Portfolio value for all percentage calculations is to be set six monthly based upon an average of all investments held for the previous 3 years. This was included at a time when the total value of Councils funds available for investment was growing rapidly from year to year. This has now stabilised. As the Total value of the Council’s funds available within the year swings widely, from the highs available at the conclusion of the main rating period to the lows experienced at end of the financial year; the linking of the percentages to a three year average impedes investment functionality. The three year average may be significantly different to the value of the funds held at a point in time, and therefore may allow for a significantly different spread of investments than were the base value simply the current available funds.

 

Contrary to that time, the range of investments available to the Council under today’s legislative restrictions is very narrow, being generally restricted to term deposits of no more than 12 months or Government guaranteed bonds. Accordingly, the options available as to where to invest funds are extremely limited; unlike at the time the clause was included. Limits remain in the Policy as to the value of funds which can be invested with a bank based upon its rating; however the limit will be based upon current balances, not an historical average.

 

Secondly, the current clause requires an “11am type account held with the City’s major banker”. Looking forward, it may be favourable for the City to hold this bank account with a bank other than the bank through which we conduct our general day to day banking. Primarily, this would be due to an opportunity to access higher rates of return, while maintaining same day access to those funds. Accordingly, the reference to “held with the City’s major banker” is proposed to be deleted.

 

CONCLUSION

 

The proposed changes to the Investment Policy will not alter the Council’s risk exposure. They will however improve the Policy’s functionality. Removing the three year rolling average requirement will remove an impediment to invest funds over the year as the balance of the portfolio undergoes normal operating fluctuations. Removing the reference to the City’s “11am style” bank account being held with the City’s general banker will allow for possible future relocation of this account should it be found to be in the Council’s favour.

 

OPTIONS

 

The Finance Committee may determine to recommend alternative revisions to the Investment Policy for the Council’s formal consideration. However, it is essential that the policy remains compliant with the requirements of the Act and associated Regulations.

 

TIMELINE FOR IMPLEMENTATION OF OFFICER RECOMMENDATION

 

The revised Policy will become effective immediately upon the Council’s determination. No changes to the prevailing investment portfolio are required as a result of this amendment.

 

COMMITTEE RECOMMENDATION AND OFFICER RECOMMENDATION

 

That the Council adopts the following Investment Policy, to the replace the existing Investment Policy:

 

218

Investment

V9

 

STATEMENT

 

The principal objective of the Council in respect of the investment of surplus credit funds is the preservation of capital. Whilst a conservative approach is to be adopted with regards to investment decisions, the maximisation of returns within the confines of the policy guidelines is also encouraged.

 

This policy details the relevant authorities for investment, the nature and type of investments that can be entered into, institution exposure limits, investment performance benchmarks and associated reporting requirements. 

 

PURPOSE

 

This policy provides specific guidelines for the Council, Chief Executive Officer and relevant employees of the City of Busselton in respect of the investment of surplus funds that are not immediately required for any other purpose.

 

Compliance with this policy will ensure prudency in the preservation of capital, whilst promoting the maximisation of investment returns within the policy guidelines.         

 

SCOPE

 

As part of its core financial operations, the City of Busselton is positioned to invest surplus funds not immediately required for any other purpose; in order to add value through increased investment returns. The nature of funds available for investment includes Reserves, other restricted funds (e.g. contributions, bonds etc) and general revenue funds in excess of immediate cash-flow requirements. Investment earnings assist in augmenting reserve balances and also supplementing other general revenue streams.

 

Whilst the revenue associated with investment earnings represents an important component of the City’s funding sources, the Council has identified the preservation of investment capital as a principal objective; and as such, investment decisions must primarily align with this objective.

 

Whilst this policy reflects the Council’s capital preservation objective, it also provides sufficient flexibility to assist in the maximisation of investment returns within the defined investment types and associated exposure limits.

 

DEFINITIONS

 

“ADI” – Authorised Deposit-Taking Institutions (ADI’s) are corporations that are authorised under the Banking Act 1959 to take deposits from customers.

 

“APRA” – Australian Prudential Regulation Authority (APRA) is the prudential regulator of the Australian financial services industry. It oversees banks, credit unions, building societies, general insurance companies and most members of the superannuation industry. 

 

“Austraclear” - The Austraclear System, which is regulated by the Reserve Bank, simplifies settlement complexities and enhances straight-through-processing (STP), office integration and cross border opportunities to facilitate the registering, bookkeeping, clearing and settlement of a broader range of derivative, security and cash asset classes.

 

“Big four” Bank – For the purposes of this policy, the Australian “Big four” banks comprise the Commonwealth Bank, the National Australia Bank, Westpac and ANZ Bank.  

 

“Counterparty” – A counterparty is both the legal and financial term that refers to the other individual or institution to an agreement or contract. 

 

“Custodian – Safe Custody” - A custodian is a brokerage or other financial institution that holds and manages securities, or other assets, on behalf of an investor.

 

“Rating Agency” – Credit rating agencies such as Standard and Poors (S & P) are professional organisations that provide opinion on the general credit worthiness of an obligor with respect to particular debt security or other financial obligations.     

 

 

POLICY CONTENT

               

1.1          Objectives

 

§ The purpose of this policy is to establish the investment risk management guidelines that the City of Busselton adopts in investing surplus funds that are not immediately required for any other purpose.

§ The principal objective of this policy is the preservation of capital (Security).

§ To take a conservative approach to investments, but with a focus to add value through prudent investment of funds (Security).

§ To achieve a high level of security by using recognised ratings criteria (Security).

§ To maintain an adequate level of diversification (Security).

§ To have ready access to funds for day-to-day requirements (Liquidity).

§ To ensure compliance with appropriate legislative requirements (Compliance).

 

1.2          Authority for Investment

 

All investments are to be made in accordance with:

§ Local Government Act 1995 – Section 6.14 and any regulations made under that Act including the following;

§ Local Government (Financial Management) Regulations 1996 – Regulation 19C

§ The Trustees Act 1962 – Part III Investments as amended by the Trustees Amendment Act 1997.

 

1.3          Delegation of Authority

 

The Chief Executive Officer is authorised to invest surplus funds in accordance with this policy.   

 

1.4          Authorised Investments

 

All investments must be denominated in Australian Dollars.  Authorised Investments are limited to those permitted by the appropriate legislation, being:

With an Authorised institution, being:

a.    An authorised deposit taking institution as defined in the Banking Act 1959 (Commonwealth) section 5; or

b.    The Western Australian Treasury Corporation established by the Western Australian Treasury Corporation Act 1986;

A Bond that is guaranteed by the Commonwealth Government, or a State or Territory Government;

 

1.5          Investment Guidelines – Credit Quality, Diversification and Term to Maturity Constraints

 

(i)            Portfolio Credit Framework

 

The portfolio credit guidelines to be adopted will be based on the Standard & Poor’s (S&P) ratings system criteria. The maximum available limits in each rating category is reflected in the below table.

 

(ii)           Counterparty/Institution Credit Framework

 

Exposure to individual counterparties/financial institutions will be restricted by their S&P rating so that single entity exposure is limited, as detailed in the below table.

 

 

 

Credit Ratings
(Standard & Poor’s or equivalent)

Individual Institution Limits

Overall Portfolio

Credit Limits

Long Term

Credit Ratings

Short Term                  Credit Ratings

 

Maximum Percentage

With One Financial

Institution

Maximum Weighting as % of Total Investment
Portfolio

AAA (All Aus. ADI)

A-1+

40%

100%

AA (Aus. "Big four" Bank)

A-2

40%

100%

AA (Other Aus. ADI)

A-2

20%

100%

A (All Aus. ADI)

A-2

15%

60%

BBB (All Aus ADI)

A-3

10%

20%

 

(iii)          Term to maturity Framework

 

Legislation restricts the term to maturity for a deposit with an ADI to a maximum term of 12 months, and a Bond to a maximum term of 3 years. The investment portfolio is to be invested with the following term to maturity constraints:

 

Overall Portfolio Term to Maturity Limits

Duration

Maximum

Portfolio % < 1Year

100%

Portfolio % > 1 Year < 3 Years

20%

 

1.6          Credit Ratings

 

If any of the City’s investments are downgraded such that they no longer fall within these investment policy guidelines, they will be divested as soon as is practicable.

 

1.7          Accounting for Premiums and Discounts

 

From time to time financial assets may be acquired at a discount or premium to their face value. Any such discount or premium is to be taken into account in line with relevant Australian Accounting Standards.  

 

1.8          Base Total Investment Portfolio Value for Percentage Calculations

 

The value of any funds held in an 11am type account, being one that offers higher interest rates than a standard cheque account but maintains same day access to funds; shall be excluded when verifying compliance with this policy.

 

1.9          Safe Custody Arrangements

 

Where necessary, investments may be held in safe custody on the City’s behalf, as long as the following criteria are met:

 

·    The City must retain beneficial ownership of all investments.

·    Adequate documentation is provided, verifying the existence of the investments.

·    The Custodian conducts regular reconciliation of records with relevant registries and/or clearing systems.

·    The Institution or Custodian recording and holding the assets will be:

Austraclear or;

An institution with an investment grade Standards and Poors or Moody’s rating or;

An institution with adequate insurance, including professional indemnity insurance and other insurances considered prudent and appropriate to cover its liabilities under any agreement.

 

1.10   General

 

The City of Busselton will not make ill-informed or unpredictable investment decisions, be engaged in overly speculative investments, or invest other than in compliance with the relevant legislation.

 

1.11        Reporting

 

(i)           A report will be provided to the Council on monthly basis as a minimum, detailing the investment portfolio in terms of performance and counterparty percentage exposure of total portfolio. The report will also detail investment income earned versus budget year to date and confirm compliance of the City’s investments within legislative and policy limits.

(ii)          For audit purposes, certificates must be obtained from the banks/fund managers/custodian confirming the amounts of investment held on the City’s behalf at 30th June each year.

 

Policy Reference No. - 218

Owner Unit – Finance

Originator – Manager, Finance and Information Technology

Policy approved by – Council

Date Approved – 27 June, 2012

Review Frequency – As required

Related Documents – Nil

Background/History –

 

History

 

Council Resolution

Date

Information

C1206/154

27 June, 2012

New regulations needed to be recognised in the policy.  The City’s existing investment portfolio was already fully compliant with the amended legislation. The portfolio currently consists totally of term deposits held with complying banks for maximum terms of nine months. Therefore, only the wording of the actual investment policy required amendment, and not where funds are held. The revised policy removes all reference to any other forms of investment other than those permitted under the revised legislation. It also regulates the term of those investments to reflect the legislative requirements. Finally, reference to the appropriate sections of the revised legislation has been inserted.

Version 8

C1111/280

14 September, 2011

Increase to the maximum allocation at any one financial institution

Version 7

C1001/021

27 January, 2010

Council resolved to review the investment policy to change its approach to investment in managed funds

Version 6

C0905/176

27 May, 2009

Council resolved to remove any reference to all references to Diversified Funds (non-credit-rated).

Version 5

C0803/085

12 March, 2008

Council resolved to reword the section of the policy relating to the Base Total Investment Portfolio for Percentage Calculations.

Version 4

 

Wording of former Clause

1.8      Base Total Investment Portfolio Value for Percentage Calculations

The base total Investment Portfolio value for all percentage calculations shall be set six monthly as at December 31 and June 30, based upon the average of all Investments held for the previous 3 years.

 

C0702/040

28 February, 2007

Former investment policy 218/1 (V2) revoked in favour of a new investment policy 218/2.

Version 3

C994/012

14 April, 1999

Update to investment strategy and policy.

Version 2

 

 

Version 1

 

 

 

 


Council

95

24 September 2014

10.4

Attachment a

Currently adopted Investment Policy (V8)

 


 


 


 


 


 


Council                                                                                      101                                                      24 September 2014

10.5           Finance Committee - 4/09/2014 - FINANCIAL ACTIVITY STATEMENTS – PERIOD ENDING 31 JULY 2014

SUBJECT INDEX:

Budget Planning and Reporting

STRATEGIC OBJECTIVE:

An organisation that is managed effectively and achieves positive outcomes for the community.

BUSINESS UNIT:

Finance and Information Technology

ACTIVITY UNIT:

Finance and Information Technology

REPORTING OFFICER:

Manager, Finance and Information Technology - Darren Whitby

AUTHORISING OFFICER:

Director, Finance and Corporate Services - Matthew Smith

VOTING REQUIREMENT:

Simple Majority

ATTACHMENTS:

Attachment a   Financial Activity Statements – Period Ending 31 July 2014  

 

This item was considered by the Finance Committee at its meeting on 4 September 2014, the recommendations from which have been included in this report. 

 

PRÉCIS

 

Pursuant to Section 6.4 of the Local Government Act (‘the Act’) and Regulation 34(4) of the Local Government (Financial Management) Regulations (‘the Regulations’), a local government is to prepare, on a monthly basis, a statement of financial activity that reports on the City’s financial performance in relation to its adopted/ amended budget.

 

This report has been compiled to fulfil the statutory reporting requirements of the Act and associated Regulations, whilst also providing the Council with an overview of the City’s financial performance on a year to date basis for the period ending 31 July 2014.

 

 

BACKGROUND

 

The Regulations detail the form and manner in which financial activity statements are to be presented to the Council on a monthly basis; and are to include the following:

 

§   Annual budget estimates

§   Budget estimates to the end of the month in which the statement relates

§   Actual amounts of revenue and expenditure to the end of the month in which the statement relates

§   Material variances between budget estimates and actual revenue/ expenditure/ (including an explanation of any material variances)

§   The net current assets at the end of the month to which the statement relates (including an explanation of the composition of the net current position)

 

Additionally, and pursuant to Regulation 34(5) of the Regulations, a local government is required to adopt a material variance reporting threshold in each financial year. At its meeting of 30 July 2014, the Council adopted (C1407/190) the following material variance reporting threshold for the 2014/15 financial year:

 

That pursuant to Regulation 34(5) of the Local Government (Financial Management) Regulations, the Council adopts a material variance reporting threshold with respect to financial activity statement reporting for the 2014/15 financial year to comprise variances equal to or greater than 10% of the year to date budget amount as detailed in the Income Statement by Nature and Type/ Statement of Financial Activity report, however variances due to timing differences and/ or seasonal adjustments are to be reported on a quarterly basis.  

 

STATUTORY ENVIRONMENT

 

Section 6.4 of the Local Government Act and Regulation 34 of the Local Government (Financial Management) Regulations detail the form and manner in which a local government is to prepare financial activity statements.    

 

RELEVANT PLANS AND POLICIES

 

NA.

 

FINANCIAL IMPLICATIONS

 

Any financial implications are detailed within the context of this report.

 

STRATEGIC COMMUNITY OBJECTIVES

 

This matter principally aligns with Key Goal Area 6 – ‘Open and Collaborative Leadership’ and more specifically Community Objective 6.3 - ‘An organisation that is managed effectively and achieves positive outcomes for the community’. The achievement of the above is underpinned by the Council strategy to ‘ensure the long term financial sustainability of Council through effective financial management’.

 

RISK ASSESSMENT

 

Risk assessments have been previously completed in relation to a number of ‘higher level’ financial matters, including timely and accurate financial reporting to enable the Council to make fully informed financial decisions. The completion of the monthly Financial Activity Statement report is a treatment/ control that assists in addressing this risk.   

 

CONSULTATION

 

NA.

 

OFFICER COMMENT

 

In order to fulfil statutory reporting requirements, and to provide the Council with a synopsis of the City’s overall financial performance on a year to date basis, the following financial reports are attached hereto:

 

§   Statement of Financial Activity

This report provides details of the City’s operating revenues and expenditures on a year to date basis, by nature and type (i.e. description). The report has been further extrapolated to include details of non-cash adjustments and capital revenues and expenditures, to identify the City’s net current position; which reconciles with that reflected in the associated Net Current Position report.

 

§   Net Current Position

This report provides details of the composition of the net current asset position on a year to date basis, and reconciles with the net current position as per the Statement of Financial Activity.

 

§   Capital Acquisition Report

This report provides year to date budget performance (by line item) in respect of the following capital expenditure activities: 

o    Land and Buildings

o    Plant and Equipment

o    Furniture and Equipment

o    Infrastructure

 

§   Reserve Movements Report

This report provides summary details of transfers to and from reserve funds, and also associated interest earnings on reserve funds, on a year to date basis. 

 

§   Reserve Transfers to Municipal Fund

This report provides specific detail in respect of expenditures being funded from reserves.  

 

Additional reports and/ or charts are also provided as required to further supplement the information comprised within the statutory financial reports.

 

COMMENTS ON FINANCIAL ACTIVITY TO 31 JULY 2014

 

Historically, significant variances are evident in most revenue and expenditure categories during the early part of each financial year. With this in mind, this initial monthly report will not make any specific commentary on individual variances, which are predominantly due to timing differences. However, the report does list, for information purposes, those activities where the 10% reporting threshold has been exceeded (irrespective of timing matters).    

 

Operating Activity

 

§   Operating Revenue

 

As at 31 July 2014, there is a variance of -44% in total operating revenue, with the following categories exceeding the 10% material variance threshold:  

 

Description

Variance

%

Variance

$000’s

Rates

-98%

Nominal

Operating Grants, Subsidies and Contributions

+362%

+$122

Fees and Charges

-51%

-$549

Other Revenue

+66%

+$23

Interest Earnings

-44%

-$88

Non-Operating Grants, Subsidies and Contributions

-55%

-$497

 

§   Operating Expenditure

 

As at 31 July 2014, there is a variance of -23% in total operating expenditure, with the following categories exceeding the 10% material variance threshold:  

 

Description

Variance

%

Variance

$000’s

Materials and Contracts

-75%

-$1,201

Depreciation on Non-current Assets

+19%

+$164

Insurance Expenses

-15%

-$74

Other Expenditure

-41%

-$117

Allocations

-57%

-$95

 

 

 

 

 

Capital Activity

 

§   Capital Revenue

 

As at 31 July 2014, there is a variance of -22% in total capital revenue, with the following categories exceeding the 10% material variance threshold:  

 

Description

Variance

%

Variance

$000’s

Proceeds from the Sale of Assets

-69%

-$48

Transfers from Restricted Assets

-10%

-$28

 

§   Capital Expenditure

 

As at 31 July 2014, there is a variance of -36% in total capital expenditure, with the following categories exceeding the 10% material variance threshold: 

 

Description

Variance

%

Variance

$000’s

Land and Buildings

+87%

+$246

Plant and Equipment

-99%

-$183

Furniture and Equipment

-94%

-$33

Infrastructure

-80%

-$728

Transfers to Restricted Assets

-30%

-$26

 

The attachments to this report include detailed listings of the following capital expenditure (project) items, to assist in reviewing specific variances:

§   Land and Buildings

§   Plant and Equipment

§   Furniture and Equipment

§   Infrastructure

 

BUDGET VARIATIONS AND OTHER ‘KNOWNS’

 

Nil.

 

CONCLUSION

 

Significant variances are not unusual in the very early part of each financial year, with this primarily due to budget timing differences , coupled with an increased tendency for higher variances to occur based on ‘lesser’ year to date budget allocations. In reviewing the financial performance to the end of July, the major variances are all primarily attributable to timing differences, or in some instances, earlier than projected revenue receipts.       

 

OPTIONS

 

The Council may determine not to receive the statutory financial activity statement reports.

 

TIMELINE FOR IMPLEMENTATION OF OFFICER RECOMMENDATION

 

NA.

 

 

COMMITTEE DECISION AND OFFICER RECOMMENDATION

 

That the Council receives the statutory financial activity statement reports for the period ending 31 July 2014, pursuant to Regulation 34(4) of the Local Government (Financial Management) Regulations.

 

 

 


Council

105

24 September 2014

10.5

Attachment a

Financial Activity Statements – Period Ending 31 July 2014

 


 


 


 


 


 


 


 


 


 


 


 


 


 


Council                                                                                      119                                                      24 September 2014

10.6           Finance Committee - 4/09/2014 - LIST OF PAYMENTS MADE – JULY 2014

SUBJECT INDEX:

Financial Operations

STRATEGIC OBJECTIVE:

An organisation that is managed effectively and achieves positive outcomes for the community.

BUSINESS UNIT:

Finance and Information Technology

ACTIVITY UNIT:

Finance and Information Technology

REPORTING OFFICER:

Manager, Finance and Information Technology - Darren Whitby

AUTHORISING OFFICER:

Director, Finance and Corporate Services - Matthew Smith

VOTING REQUIREMENT:

Simple Majority

ATTACHMENTS:

Attachment a   List of Payments Made – July 2014  

 

This item was considered by the Finance Committee at its meeting on 4 September 2014, the recommendations from which have been included in this report. 

 

PRÉCIS

 

This report provides details of payments made from the City’s bank accounts for the month of July 2014, for noting by the Council and recording in the Council Minutes.

 

 

BACKGROUND

 

The Local Government (Financial Management) Regulations require that when the Council has delegated authority to the Chief Executive Officer to make payments from the City’s bank accounts, that a list of payments made is prepared each month for presentation to, and noting by, the Council.

 

STATUTORY ENVIRONMENT

 

Section 6.10 of the Local Government Act and more specifically, Regulation 13 of the Local Government (Financial Management) Regulations; refer to the requirement for a listing of payments made each month to be presented to the Council. 

 

RELEVANT PLANS AND POLICIES

 

NA.

 

FINANCIAL IMPLICATIONS

 

NA.

 

STRATEGIC COMMUNITY OBJECTIVES

 

This matter principally aligns with Key Goal Area 6 – ‘Open and Collaborative Leadership’ and more specifically Community Objective 6.3 - ‘An organisation that is managed effectively and achieves positive outcomes for the community’.

 

RISK ASSESSMENT

 

NA. 

 

CONSULTATION

 

NA.

 

OFFICER COMMENT

 

NA.

 

CONCLUSION

 

NA.

 

OPTIONS

 

NA.

 

TIMELINE FOR IMPLEMENTATION OF OFFICER RECOMMENDATION

 

NA.

 

COMMITTEE RECOMMENDATION AND OFFICER RECOMMENDATION

 

That the Council notes the payment of voucher numbers M109206 - M109448, EF035343 - EF035806, T007092 - T007096, and DD002233 - DD002247, together totalling $6,407,008.34.

 

 

 


Council

123

24 September 2014

10.6

Attachment a

List of Payments Made – July 2014

 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


Council                                                                                      147                                                      24 September 2014

10.7           Finance Committee - 4/09/2014 - PROPOSAL TO AMEND THE BUDGET – RAILS-TO-TRAILS (WADANDI TRACK)

SUBJECT INDEX:

Budget planning and reporting; trails

STRATEGIC OBJECTIVE:

A City where the community has access to quality cultural, recreation, leisure facilities and services.

BUSINESS UNIT:

Engineering and Facilities Services

ACTIVITY UNIT:

Development Control

REPORTING OFFICER:

Land and Infrastructure Officer - Andrew Scott

AUTHORISING OFFICER:

Director, Engineering and Works Services - Oliver Darby

VOTING REQUIREMENT:

Absolute Majority

ATTACHMENTS:

Attachment a   Wandandi Track Interpretation elements

Attachment b    Plan of works for the Sandy Gully stage  

 

This item was considered by the Finance Committee at its meeting on 4 September 2014, the recommendations from which have been included in this report. 

 

PRÉCIS

 

The City has been successful in securing two Lotterywest Grants for the Rails-to-Trails (Wadandi Track) project.  This report seeks the approval of the Council to accept the grants and to amend the 2014/15 Budget accordingly.

 

 

BACKGROUND

 

The steering committee for the Busselton to Flinders Bay Rail Trail project is progressing with the master plan for the construction of a 106km trail over the alignment of the former WA Government railway from the Busselton Jetty Precinct to the former jetty at Flinders Bay, Augusta.  The steering committee is working under the guidance of similar rails-to-trails policy as adopted by the respective Councils.

 

Reports that have been completed towards the master plan are: (a) trail development plan; (b) assessment of Aboriginal heritage; (c) environmental plans; (d) interpretation plan; (e) land report; (f) summary report; and (g) a business case.  The waterways report remains the outstanding report for the master plan and will be completed within the next few months.

 

On the recommendation of the steering committee, the respective Councils have endorsed a name for the rail trail, and it is now known as the ‘Wadandi Track’.  The Council of the City of Busselton has also endorsed the name ‘Kangaroo Gully Bridge’ for an old railway bridge located near the Busselton Bypass at a point where fauna is allowed to pass under the Bypass.  The project to reconstruct the bridge was funded by the Water Corporation, Seaport Pty Ltd (for the ‘Vasse Newtown’ subdivision) and Lotterywest; and is now complete.

 

City Officers are continuing to work with the developer of the ‘Vasse’ subdivision to progress the landscaping of the Wadandi Track section through the ‘Vasse Village Centre’.  The Vasse Village Centre is the location for a Wadandi Track trailhead; and it is at this location that a number of interpretation elements are proposed (refer to Attachment A) as per the Interpretation Plan for the Busselton to Flinders Bay Rail Trail (2013).  To progress with the detailed design of those interpretation elements, the City applied for a Lotterywest Interpretation Grant and was successful with this application.  The grant will also fund the manufacturing of the interpretation signage for the Vasse trailhead.  The design work from this stage will apply to the remainder of the Wadandi Track.

 

The City has also been successful in a Lotterywest Trails Grant application to part fund the construction of a stage of the Wadandi Track from Commerce Road to Cockerill Place, including a crossing over of Sandy Gully.  A plan of the proposed works is shown in Attachment B.

 

STATUTORY ENVIRONMENT

 

·     Local Government Act 1995, section 6.8 ‘Expenditure from municipal fund that is not included in the annual budget’.  A resolution in advance of the expenditure is required by absolute majority.

 

RELEVANT PLANS AND POLICIES

 

·     Council Policy 011 ‘Rails to Trails’

·     Long Term Financial Plan 2013/14 to 2022/23

·     Community Facilities Implementation Policy 2008, adopted 14 May 2008

·     Interpretation Plan for the Busselton to Flinders Bay Rail Trail (2013)

 

FINANCIAL IMPLICATIONS

 

Grant 1 - Lotterywest Interpretation Grant

 

This grant for $40,950 does not need to be matched by the City, thus its inclusion on 2014/15 budget will have no impact on the City’s net financial position.

 

The grant will be used for the detailed design of interpretation elements that will then be applied to the remainder of the Wadandi Track project.  It will also fund the manufacturing of interpretation signage for the Vasse trailhead.

 

Grant 2 – Lotterywest Trails Grant, Sandy Gully stage

 

The existing 2014/15 budget includes $100,000 for expenditure and $50,000 of grant revenue for the Rails to Trails project.  These amounts are consistent with the Long Term Financial Plan.

 

The City applied for a Lotterywest Trails Grant to fund 50% of the estimated total cost of $143,880 to construct the Sandy Gully stage of the Wadandi Track from Commerce Road to Cockerill Place.

 

Lotterywest approved the grant application and the City was successful in securing a grant for $71,940. To match the grant, and so the project can proceed, this report seeks the Council’s approval to access an additional $21,940 from the Community and Recreation Facilities Fund (refer below).  This will increase the City’s contribution to the project from the budgeted $50,000 to $71,940.

 

The Community and Recreation Facilities Fund

 

This report recommends drawing from Community and Recreation Facilities fund to match the additional grant revenue secured for the Sandy Gully stage of the Wadandi Track.  This fund is a Restricted Asset account made up of developer contributions for the provision of community facilities.

 

The Local Planning Policy ‘Community Facilities Implementation Policy (2008)’ document lists the community facilities to which development contributions may be directed.  The ‘Rails to Trails recreation trail’ is listed under Table 1 ‘ District Level Community Facilities’.

 

The appropriation of funds is in accordance with the Community Facilities Implementation Policy 2008 and supporting documents.

 

STRATEGIC COMMUNITY OBJECTIVES

 

Key goals

Community objectives

2. Well Planned, Vibrant and Active Place

2.1 A City where the community has access to quality cultural, recreation, and leisure facilities and services.

 

2.2 A City of shared, vibrant and well planned places that provide for diverse activity and strengthen our social connections.

 

2.3 Infrastructure assets that are well maintained and responsibly managed to provide for future generations.

 

RISK ASSESSMENT

 

Payment of the approved grants will be made in arrears and is subject to the grant conditions.  The City must therefore ensure that it complies with the grant conditions.

 

CONSULTATION

 

The trail development planning involved consultation with adjoining land owners and a section of the Trail Development Plan document covers the issues raised.

 

Most of the documents of the Trail Master Plan (trail development, interpretation, etc.) have been made available for public comment.   Forty four (44) submissions and a petition were received with most responses supportive of the trail development.  A more detailed analysis of the submissions and consultation will be provided in a separate report to the Council for consideration of the master plan.

 

OFFICER COMMENT

 

Grant 1 Lotterwest Interpretation Grant

 

Referring to Attachment A, the Lotterywest Interpretation Grant will fund the detailed design of the interpretation elements for the Wadandi Track.  It will also fund the manufacturing of the trailhead entry signs, trailhead name sign and the interpretation boxes for the trailhead at Vasse.

 

Grant 2 Lotterywest Trail Construction Grant, Sandy Gully Stage

 

Referring to Attachment B, this grant will fund 50% of the construction of a stage of the Wadandi Track from Commerce Road to Cockerill Place, including a crossing over Sandy Gully.

 

CONCLUSION

 

This report recommends that the 2014/15 Budget is amended to include Lotterywest Grant funding for:

 

1.            Interpretation

2.            Trail construction for the Sandy Gully stage of the Wadandi Track between Commerce Road to Cockerill Place

 

This report recommends that additional approved grant funding is matched by the City through a transfer from the Community and Recreational Fund.

 

 

OPTIONS

 

This report recommends drawing $21,940 from the Community and Recreation Facilities Fund to match additional approved grant funding.  The Council may consider drawing the amount from a different account such as Infrastructure Development Reserve.

 

The Council may consider not proceeding with the rail-trail project but this would be inconsistent with Council Policy and long term planning objectives.

 

TIMELINE FOR IMPLEMENTATION OF OFFICER RECOMMENDATION

 

Should the Council support the officer recommendation, the associated budget amendments will be processed accordingly.

 

COMMITTEE RECOMMENDATION AND OFFICER RECOMMENDATION

ABSOLUTE MAJORITY DECISION OF COUNCIL REQUIRED

 

That the Council accepts the following grants and endorses the following budget amendments:

 

1.      Lotterywest Interpretation Grant  (application 421004446) for $40,950;

 

2.      Lotteryest Trails Grant  (application 421005748) for $71,940;

 

3.      Create a new cost code for the Rails-to-Trails Interpretation Grant as follows:

         Revenue $40,950 (to account string 510-C3124-1214-0000);

                Expenditure $40,950 (to account string 510-C3124-3280-0000);

 

4.      Add $21,940 to the existing $50,000 in budgeted revenue (account string 510 C3122 1214 0000);

 

5.      Add $43,880 to the existing $100,000 in budgeted expenditure (account string 510 C3122 3280 0000), including a transfer of $21,940 from the Community and Recreational Facilities fund.

 

 

 


Council

153

24 September 2014

10.7

Attachment a

Wandandi Track Interpretation elements

 


 


 


 


Council

157

24 September 2014

10.7

Attachment b

Plan of works for the Sandy Gully stage

 


Council                                                                                      157                                                      24 September 2014

10.8           Airport Advisory Committee - 1/09/2014 - BUSSELTON REGIONAL AIRPORT - PROPOSAL FOR HELICOPTER PARKING AREA

SUBJECT INDEX:

Busselton Regional Airport

STRATEGIC OBJECTIVE:

Infrastructure assets are well maintained and responsibly managed to provide for future generations.

BUSINESS UNIT:

Commercial Services

ACTIVITY UNIT:

Busselton Regional Airport

REPORTING OFFICER:

Manager, Commercial Services - Jennifer May

AUTHORISING OFFICER:

Director, Community and Commercial Services - Naomi Searle

VOTING REQUIREMENT:

Absolute Majority

ATTACHMENTS:

Attachment a   Proposed Helipad Site  

 

This item was considered by the Airport Advisory Committee at its meeting on 1 September 2014, the recommendations from which have been included in this report. 

 

PRÉCIS

 

This report presents a proposal put forward by the Department of Fire and Emergency Services for an additional helicopter parking pad to be constructed at the Busselton Regional Airport (BRA). The proposal requests that the Council consider part funding the construction of the helipad to support the emergency services firefighting helicopters based at the Airport over the fire fighting season.

 

 

BACKGROUND

 

The Department of Fire and Emergency Services (DFES) first approached the City of Busselton in 2010 to base a single firefighting helicopter at the BRA for the 2010/11 firefighting season.  The inaugural season saw the helitac landing on a gravel area which caused issues with dust and debris (fod) caused by the downwash from the rotor blades. For the second firefighting season the City of Busselton, in support of the emergency services being located at the BRA, constructed a concrete helicopter landing site (HLS). Further to this, the City extended the asphalt surrounding the HLS, provided an airside gravel road for fuel tanker access and provided power to the HLS for a transportable to be located landside for the emergency helicopter crew.

 

The initial DFES contract for emergency services to be based at the BRA was for a three year period and in 2013 DFES re-tendered the National Aerial Firefighting Centre contract which was awarded to McDermotts Aviation for a period of three years with two, one year options. The new contractor as part of the contract has provided a second helicopter, Bell 214B and for the 2013/14 firefighting season, the two helicopters were co-located on the one HLS however this caused concerns with dust and fod downwash from the rotor blades of the helicopters as well as some minor damage to the asphalt from the helicopter skids.

 

With the 2014/15 firefighting season now approaching DFES have contacted City Officers asking if the City would consider a second helicopter parking pad to be located at the BRA. As the proposal is for a parking pad only and not a full landing site, the size of the required pad is significantly smaller hence minimising costs. An arrangement between DFES, the contractor and the City has been proposed with the City contributing a third of the total costs. 

 

City Officers have considered the proposed location of a second helipad and recommend that the pad be constructed to the north of the existing HLS. The two pads will need to be separated by a minimum distance of 40 m and there is sufficient land to the north to facilitate this. Officers have considered a position south of the existing HLS, towards the apron area, however this is likely to restrict apron expansion in the future or require the proposed new pad to be relocated sooner. Hence, in maximising the use of both the HLS and proposed pad the northern site is the preferred location (See Attachment A).

 

As part of the ongoing Stage 1 development of the BRA, an emergency precinct has been planned however this is dependent on external funding and if successful construction is not likely to start until at least 2016. Hence this proposal is considered appropriate and necessary to support the emergency services response until such time as an emergency services precinct is available.

 

The basing of the helitacs at the BRA has been fully supported by the City of Busselton in past years and seen as a long term strategic initiative to provide firefighting services to the whole of the South West Region. With the BRA being centrally located within the region, the basing of the second helitac demonstrates the importance of having the helitacs and emergency services capabilities based at the BRA to service the South West Region and not be dependent on Perth or Jandakot resources in the event of an emergency.

 

STATUTORY ENVIRONMENT

 

This proposal requires compliance with CASA MOS139 Section 8.11 Helicopter landing Areas.

 

RELEVANT PLANS AND POLICIES

 

The City’s procurement policy will need to be complied with in the construction of the helipad; the Aerodrome Manual, Aerodrome Emergency Plan and Safety Management System will all need to be updated and submitted in accordance with CASA standards. 

 

FINANCIAL IMPLICATIONS

 

The City’s Construction Engineer has provided a quote for the supply of materials and construction of a concrete pad of six (6) metres by four (4) metres which will meet the standards of a helicopter parking area only. The total cost has been estimated at $11,500 (excl GST). This will require the City of Busselton to contribute a total of $3,833.33 which can be sourced from the Airport Operations maintenance budget, with the funds being sourced from other non-critical operational projects that had been planned. The remaining funds of $7,666.66 will be invoiced directly to DFES.

 

If supported an existing account code, C6007 Airport Helicopter Pad can be used for the project with an expenditure item of $11,500 and revenue item of $7,666.67 being created. The transfer of the City’s contribution to C6007 of $3,833.33 can be sourced from account 341-11151-3165.

 

STRATEGIC COMMUNITY OBJECTIVES

 

The Busselton Regional Airport and this project are consistent with following the City of Busselton’s strategic Objectives:

 

Well Planned, Vibrant and Active Places

 

– Infrastructure Assets that are well maintained and responsibly managed to provide for future generations.

 

– Connected City of Busselton Transport options that provide greater links within our district and increase capacity for community participation.

 


 

RISK ASSESSMENT

 

An assessment of the potential implications of implementing the officer recommendation has been undertaken using the City’s risk assessment framework. The assessment sought to identify ‘downside’ risks only rather than ‘upside’ risks and where the risk, following implementation of controls, has been identified as medium or greater. No such risks were identified.

 

CONSULTATION

 

Consultation with DFES, McDermotts Aviation, and Civil Aviation Safety Authority (CASA) has taken place. 

 

OFFICER COMMENT

 

The City of Busselton has continued to support the DFES helitac capability since the inaugural season in 2010/11. This has been both a financial and in-kind commitment to date, however the community service and emergency response achieved has outweighed the costs with the helitacs playing a critical role in the emergency response of the Busselton Fires, Margaret River and Nannup Fires, are part of the initial response of the Cape to Cape Emergency Strategy. The Busselton based helitacs can also be deployed to high areas of highest risk and as such were deployed to assist with the Perth (Parkerville) fires.    

 

There is no doubt that a second parking pad is required if DFES are to continue to base two helitacs at the BRA to ensure safe operations and to meet CASA safety standards. The proposed location for the helicopter parking pad does not restrict any future development plans for Stage 1 (or Stage 2) and with an immediate solution being required to support the coming firefighting seasons is viewed as an appropriate solution until an emergency precinct is constructed.

 

The City’s financial contribution to the proposed helicopter parking pad is $3,833.33 which can be sourced by making savings in other non-critical operational projects and hence no impact to the City’s bottom line.

   

CONCLUSION

 

City officers recommend that the Council support the proposal for a helipad parking pad to be constructed at the BRA in support of the DFES helicopter firefighting capability already based at the Airport. The proposed additional parking pad will enable the two helitacs to operate safely and reduce the risk of potential engine damage caused from rotor blade downwash.

 

OPTIONS

The Council chooses not to accept the Officers recommendation.

TIMELINE FOR IMPLEMENTATION OF RECOMMENDATION

 

The DFES helitacs are planned to be based at the Busselton Airport from mid December 2014 for the start of the 2014/15 firefighting season.

 

 

 

 

 

 

OFFICER RECOMMENDATION AND COMMITTEE RECOMMENDATION

 

That the Airport Advisory Committee:

                                                                                                                                                         SIMPLE MAJORITY

 

1.      Supports the construction of an additional helicopter parking pad at the Busselton Regional Airport to the value of $11,500 , to facilitate the basing of emergency services at the Airport ;

 

OFFICER RECOMMENDATION AND COMMITTEE RECOMMENDATION

 

That the Airport Advisory Committee:

                                                                                         ABSOLUTE MAJORITY DECISION OF COUNCIL REQUIRED

 

2.    Creates an expenditure account of $11,500 and a revenue item of $7677.67 for C6007- Airport Helicopter Pad; and

 

3.    Transfer the City’s contributing amount of $3833.33 from account 341-11151-3165 to C6007.

 

 

 


Council

161

24 September 2014

10.8

Attachment a

Proposed Helipad Site

 


Council                                                                                      163                                                      24 September 2014

10.9           Airport Advisory Committee - 1/09/2014 - WATER CORPORATION LAND EXCHANGE AND SALE CONTRACT - RUNWAY EXTENSION BUSSELTON REGIONAL AIRPORT

SUBJECT INDEX:

Busselton Regional Airport Development

STRATEGIC OBJECTIVE:

A community that is well connected to its neighbours and the broader world.

BUSINESS UNIT:

Corporate Services

ACTIVITY UNIT:

Legal Services

REPORTING OFFICER:

Legal Services Coordinator - Cobus Botha

AUTHORISING OFFICER:

Director, Finance and Corporate Services - Matthew Smith

VOTING REQUIREMENT:

Simple Majority

ATTACHMENTS:

Attachment a   Area plan Lots 9001 & 1 Vasse Highway

Attachment b    Map showing Lot 55, Lindberg Road and Lot 57, Vasse Highway  

 

This item was considered by the Airport Advisory Committee at its meeting on 1 September 2014, the recommendations from which have been included in this report. 

 

PRÉCIS

 

The City of Busselton’s Busselton Regional Airport Master Plan 2011 – 2031 provides for the acquisition of land adjacent to Busselton Regional Airport for future stages of development of the airport.  The purpose of this report is for Council to consider the acquisition of a portion of land owned by Water Corporation which is required for the southern expansion of the airport’s existing runway and to exchange and transfer City owned land to Water Corporation to offset part of the City’s costs.

 

It is recommended that Council authorise the proposed land sale and exchange transaction.

 

 

BACKGROUND

 

In 2011 Council adopted the Busselton Regional Airport Master Plan 2011 – 2031 (BRA Master Plan) to guide the process towards the development of Busselton Regional Airport (BRA) and preparation of a business case for State Government funding (Council resolution C1111/363).  The preferred development option under the BRA Master Plan is characterised by progressive upgrades in four distinct stages.  Under Stage 1, which is currently being implemented, provision is made for land acquisition in preparation for future stages.  Stage 2, with an indicative implementation date of 2014/15, provides, among other things, for an extension of BRA’s existing runway, lengthening it from its existing 1800m to 2300m (Runway Extension). As part of developing the City’s business case for the BRA development a southern Runway Extension was identified as an alternative to what is identified in the BRA Master Plan as it will reduce the acquisition requirements on the northern privately owned land and would contain the ownership of the land surrounding the airport on the southern end to the Vasse Highway by the City.

 

BRA is located at Lot 9001, Vasse Highway, Yalyalup (Airport Land). Due to the close proximity of the existing runway to the Airport Land’s southern boundary the Runway Extension will encroach on Lot 1, Vasse Highway owned by Water Corporation. Subsequently a triangular portion of Lot 1, approximately 11.3 hectares in extent (Water Corporation Land), is required for the Runway Extension (see Attachment A). The Water Corporation Land comprises of unimproved agricultural land currently being used for grazing and has been valued at $13,790 per hectare which is based on a valuation obtained by Water Corporation and has been confirmed to be in the range by independent valuers through the State Government’s business case process.

 

The City is the registered proprietor of Lot 55, Lindberg Road (2.1383 ha) and Lot 57, Vasse Highway (1.5783 ha)(City Land). Both these lots comprise of narrow unimproved slivers of land being used for drainage purposes as part of the Vasse River Diversion Drain system – see Attachment B.  As such the Water Corporation indicated its interest in acquiring the City Land to assist with the minimisation of costs. 

City officers entered into negotiations with Water Corporation with the view of acquiring the Water Corporation Land for purposes of the Runway Extension. Water Corporation indicated that it understands the regional significance of the proposed BRA expansion and offered to sell the Water Corporation Land to the City subject to certain conditions. Water Corporation also indicated that it would be willing to acquire the City Land at an equivalent per hectare rate to assist with minimising the City’s costs. These negotiations resulted in Water Corporation formally presenting the City with a Land Exchange and Sale Contract in terms of which it offers to sell the Water Corporation Land to the City on the following terms and conditions (note all amounts are exclusive of GST):

 

·    The Water Corporation Land is sold to the City for $155,827.00 (11.3 ha X $13,790 per hectare).

·    The City Land is sold to Water Corporation for $51,251 (2.1383 ha + 1.5783 ha X $13,790 per hectare) which is to be offset as partial payment of the amount payable to Water Corporation.

·    The final extent of the Water Corporation Land will be determined by a licensed surveyor which may result in a minor adjustment to the net purchase price.

·    The City has to pay a refundable deposit of $10,457.60 to Water Corporation within 5 days after the date of execution of the Land Exchange and Sale Contract.

·    The contract is conditional upon the Western Australian Planning Commission approving subdivision of Water Corporation’s Lot 1 (to create a separate title for the Water Corporation Land) and amalgamation of the Water Corporation Land with the Airport Land.

·    Settlement and registration of transfer of all subject land parcels to take place once subdivision approval has been obtained.

·    The balance purchase price ($104,576.00 – deposit) is payable by the City to Water Corporation in cash on the date of settlement.

·    The City at the stage when the Runway Extension progresses has to relocate at its cost an existing storm water drain (currently aligned along the Airport Land’s southern boundary) along the Water Corporation Land’s eastern boundary (New Drain). The New Drain will ultimately be located within the remaining extent of Lot 1 retained by the Water Corporation – see Attachment A.

·    The City will be granting Water Corporation a temporary drainage easement in respect of the existing drain until the New Drain has been completed.

·    The City will be responsible for payment of one half of the legal costs for the preparation, negotiation and execution of the Land Exchange and Sale Contract, all subdivision and amalgamation costs, Landgate registration fees payable in respect of the easement to be lodged and transfer of the City Land to the Water Corporation and duty payable in respect of the transfer of the Water Corporation Land to the City.  Similarly Water Corporation will be responsible for payment of all Landgate registration fees in respect of transfer of the Water Corporation Land to the City and duty payable in respect of the transfer of the City Land to the Water Corporation.

 

The purpose of this report is for Council to consider the proposed land exchange and sale transaction and to resolve whether to endorse acquisition of the Water Corporation Land on the proposed terms and conditions.  

 

STATUTORY ENVIRONMENT

 

Acquisition of the Water Corporation Land will constitute acquiring an interest in land as contemplated under section 3.59 of the Local Government Act 1995 (Act).  Under certain circumstances, such an acquisition will constitute a ‘major land transaction’ and therefore require preparation and advertising of a ‘business plan’ before the City could enter into a transaction of such a nature.  However, as the total value of the proposed acquisition will be less than the statutory threshold as contemplated under section 3.59 of the Act, the proposed acquisition of the Water Corporation Land will fall outside the application of section 3.59.

 

In terms of s. 3.58 of the Local Government Act 1995 (Act), unless an exemption applies, a local government can only dispose of property to the highest bidder at public auction, by way of public tender or by following the public consultation process as provided for under Sections 3.58(3) & (4) of the Act.  However, in terms of Regulation 30(2) of the Local Government (Functions and General) Regulations 1996 a disposition of land is an exempt disposition for purposes of Section 3.58 if the land is disposed of to an agency or instrumentality of the Crown in right of the State.  Water Corporation is established under the Water Corporations Act 1995 and therefore an “instrumentality of the Crown” as contemplated under the regulations. Consequently disposal of the City Land in terms of the proposed Land Exchange and Sale Contract is excluded from the application of s. 3.58 of the Act. 

 

RELEVANT PLANS AND POLICIES

 

Acquisition of the Water Corporation Land is provided for under Stages 1B & 2 of the BRA Master Plan and the land acquisition and associated works (like construction of the New Drain) have also been included under the City’s business case for State Government funding. 

 

The proposed land acquisition is also consistent with the City’s Busselton Regional Airport – Statement of Intent, which has been recognised in preparation of the BRA Master Plan.

 

FINANCIAL IMPLICATIONS

 

The costs associated with acquiring the Water Corporation Land (including legal, subdivision and land registration costs and the costs of constructing the New Drain) have been included under the City’s business case for State Government funding for development of BRA and will therefore be recovered once grant funding has been secured. However under the Land Exchange and Sale Contract:

 

·          A refundable deposit of $10,457.60 is payable within five days of execution of the contract; and

·          The balance purchase price of $94,118.40 ($104,576 – deposit of $10,457.60) is payable on date of settlement.

 

Under the City’s 2014/15 budget $100,000.00 is set aside for Miscellaneous Land Acquisitions (funded from the Infrastructure Development Reserve). It is proposed that Council utilise this budget allocation for payment of the deposit of $10,457.60. In terms of the proposed contract settlement will only take place once approval for the subdivision and amalgamation of the Water Corporation Land has been obtained (which will in all likelihood only occur towards the end 2014/15 financial year or even early in the 2015/16 financial year).  If at that stage State Government funding for the acquisition of the Water Corporation Land has not been secured, Council can use the same budget allocation to pay the balance purchase price.

 

The cost of constructing the New Drain (which is to be paid by the City) could be significant. It will include excavation of a new drain and remediation of the existing drain, crossing Vasse Highway and reconnecting the works to Water Corporation’s drainage network to the west of Vasse Highway and fencing. These costs have also been included under the City’s business case for Sate Government funding for the Runway Extension. Under the proposed Land Exchange and Sale Contract the City is under no obligation to undertake these works until such stage as the Runway Extension is progressed which in turn will only proceed once State Funding has been secured.  Therefore these costs will not impact on the City’s 2014/15 budget.

 

The City will in the meantime be responsible for payment of certain costs associated with registration of transfer of the subject land parcels. These include legal costs for preparation of the Land Exchange and Sale Contract, subdivision and amalgamation costs, settlement fees, Landgate registration fees and outgoings which, in total, are unlikely to exceed $25,000. Sufficient funds are available under the 2014/15 Airport Operations Budget (Airport Maintenance 341-11151-3165) for payment of these costs.

STRATEGIC COMMUNITY OBJECTIVES

 

The proposed land acquisition is consistent with the City of Busselton Strategic Community Plan 2013 which provides under Community Objective 4.2 for a community which is well connected to its neighbours and the broader world and identifies continuation with expansion plans for the Busselton Regional Airport as a Council strategy to achieve the relevant community objectives.

 

RISK ASSESSMENT

 

An assessment of the potential risks associated with the proposed land acquisition has been undertaken using the City’s risk assessment framework.  There is a possibility that the City’s funding application for development of the BRA may not succeed, causing the acquisition of the Water Corporation Land being redundant.  The risk associated with such an event will be a financial risk considered to be of medium impact which, under the circumstances, is considered to be acceptable without need for further action.

 

CONSULTATION

 

The City consulted extensively with a wide range of advisors, experts and government agencies for purposes of preparing the BRA Master Plan, the City’s business case and associated funding applications.  The Land Exchange and Sale Contract is the result of intensive high level negotiations between City and Water Corporation officers.

 

OFFICER COMMENT

 

The Runway Extension is the single most important component of Stage 2 of the BRA development project as it will allow narrow body aircraft carrying sufficient fuel load to reach eastern state destinations such as Sydney and Melbourne, to land and take off from BRA. The Runway Extension and associated land acquisition have been identified as such in the BRA Masterplan, the City’s business case and associated funding applications. A southern alignment of the Runway Extension is the preferred option and therefore acquiring the Water Corporation Land is considered to be a strategic acquisition in the context of the BRA development project as a whole.

 

Water Corporation, at management level, has not always been receptive to the concept of subdividing Lot 1 and disposing of a portion thereof. However years of negotiations at officer level between the City and Water Corporation resulted in Water Corporation indicating that it understands the regional significance of the BRA development and in particular the Runway Extension and eventually agreed to sell the Water Corporation Land to the City on what is considered to be favourable conditions.  These conditions include the mutually agreed per hectare rate for determining the value of all of the land involved in the proposed transaction ($13,790.00 per hectare) which in turn is based on an independent valuation of the Water Corporation Land (which has independently been confirmed as being in the range under the City’s business case process).  This is considered to be beneficial to the City as:

 

·     The City may ultimately use the Water Corporation Land, which was valued as “grazing”, for public purposes (runway extension); and

·     The City’s Land, due to its location and physical characteristics, cannot be used for anything else other than drainage.

 

Water Corporation’s requirement for the existing drain to be replaced by the New Drain is also considered to be fair and reasonable. As a consequence of the topography of the land in the vicinity of BRA a comprehensive drainage network is required for the Runway Extension and the proper functioning of BRA, of which these drainage works form part. Although the cost of constructing the New Drain could be significant Water Corporation agreed to allow the City to defer construction of the New Drain until the Runway Extension progresses, with no obligation on the City to construct the New Drain at all if, for whatever reason, the Runway Extension does not progress. In effect the City will therefore be under no obligation to construct the New Drain until such time as State Government funding has been secured. 

 

The City Land has limited use. Both lots consist of narrow, linear portions of land with Lot 55 forming part of a watercourse and Lot 57 comprising a drain next to Vasse Highway (see Attachment B) with both lots currently being used for drainage purposes as part of Water Corporation’s Vasse River Diversion Drain system. The City does not have any other use for the City Land other than drainage. By transferring the City Land to Water Corporation the City will also avoid any potential future liability which may arise in relation to the use of the City Land for drainage purposes (e.g future maintenance or environmental obligations associated with storm water drainage)

 

There is no guarantee or certainty, should Council decide not to proceed at this stage with the proposed acquisition of the Water Corporation Land, that Water Corporation will be prepared to extend the City’s preferred buyer status in relation to the Water Corporation Land on the current favourable terms and conditions. There is also the risk that Water Corporation may, for reasons beyond the City’s control, in future decide not to dispose of the Water Corporation Land at all. On the other hand should the BRA development for whatever reason not progress the financial implication for the City of acquiring the Water Corporation Land on the proposed terms and conditions is considered to be minor.  In such event the net result would be that the City acquired the Water Corporation Land, which currently has an agricultural zoning, at grazing rates and in the process exchanged as partial payment the City Land (which has limited use and is of relatively little value to the City). Therefore proceeding with acquisition of the Water Corporation Land on the proposed terms and conditions is considered to be in the City’s best interest and therefore recommended.

 

CONCLUSION

 

The proposed land exchange transaction provides the City with an opportunity to acquire land strategically required for the Runway Extension on what is considered to be favourable terms and conditions, with relatively minor financial implications and risk to the City. It is therefore recommended that Council endorse the proposed land exchange and sale transaction as per the Officer Recommendation.

 

OPTIONS

 

Council has the option not to formally acquire the Water Corporation Land until such stage as funding for the Runway Extension has been secured.  For the reasons as mentioned under OFFICER COMMENT this alternative is not recommended.

 

TIMELINE FOR IMPLEMENTATION OF RECOMMENDATION

 

Upon execution of the Land Exchange and Sale Contract the City must pay the deposit of $10,457.60 and commences the subdivision and amalgamation process which, in terms of the contract, has to be completed within 12 months of execution.  Upon completion of the subdivision and amalgamation process settlement will take place which will include registration of transfer of the various land parcels and payment of the balance purchase price by the City to Water Corporation.

 

The City has to undertake and complete the works required for construction of the New Drain once funding has been secured for the Runway Extension which is unlikely to occur within the next 18 months.

 

OFFICER RECOMMENDATION AND COMMITTEE RECOMMENDATION

 

That the City of Busselton agrees to enter into a Land Exchange and Sale Contract with Water Corporation in accordance with the terms and conditions outlined in this report.

 

 

 


Council

169

24 September 2014

10.9

Attachment a

Area plan Lots 9001 & 1 Vasse Highway

 


Council

171

24 September 2014

10.9

Attachment b

Map showing Lot 55, Lindberg Road and Lot 57, Vasse Highway

 

 

 

 

 

 

 

 

 

 

 

 

 

Attachment B

 

 

 

 

 

 

 

 


Council                                                                                      173                                                      24 September 2014

11.             Planning and Development Services Report

11.1           RESERVE 22965 GEOGRAPHE BAY ROAD, DUNSBOROUGH – PROPOSAL TO CHANGE THE PURPOSE OF THE RESERVE FROM ‘CAMPING AND RECREATION’ TO ‘RECREATION AND FORESHORE MANAGEMENT’

SUBJECT INDEX:

Dunsborough Foreshore Concept Plan

STRATEGIC OBJECTIVE:

A City of shared, vibrant and well planned places that provide for diverse activity and strengthen our social connections.

BUSINESS UNIT:

Strategic Planning and Development

ACTIVITY UNIT:

Strategic Planning and Development

REPORTING OFFICER:

Principal Strategic Planner - Louise Koroveshi

AUTHORISING OFFICER:

Director, Planning and Development Services - Paul Needham

VOTING REQUIREMENT:

Simple Majority

ATTACHMENTS:

Attachment a   Location Plan (Reserve 22965)  

  

 

PRÉCIS

 

The Council is requested to authorise the Chief Executive Officer to write to the Minister for Lands requesting that the purpose of Reserve 22965 Geographe Bay, Dunsborough (Centennial Park) be changed from ‘Camping and Recreation’ to ‘Recreation and Foreshore Management’. This request follows the previous resolution of the Council (C1406/154) to endorse a containment zone within the reserve to accommodate the future development of a café and/or kiosk on the Dunsborough foreshore.

 

The amendment is required to ensure that the purpose of the reserve is consistent with its present values and intended future use and management and to remove inconsistency with other elements of the legislative framework.

 

 

BACKGROUND

 

At its 25 June 2014 meeting the Council resolved (C1406/154), inter alia, to endorse a containment zone within which to develop a café and/or kiosk on the Dunsborough foreshore (within ‘A’ Class Reserve 22965) and request the Minister for Lands to amend the management order for the reserve to provide the City with the power to lease the nominated containment zone. The City has not as yet written to the Minister for Lands with the request for power to lease as the Department of Lands has advised that it would be appropriate for both requests (that is, the request for power to lease and the request the subject of this report for the change of reserve purpose) to be considered as a package by the Minister for Lands, rather than as separate matters.

 

The current purpose of the reserve, being ‘Camping and Recreation’, has historical and Aboriginal heritage connections with its use as the Roelands Mission Camps between the 1940s and the late 1970s. The reserve has not been used since for this type of camping. Also since this time, local and State legislation has been enacted that now regulates camping on private and public land, including land owned and/or managed by the City. This is explained further under the Statutory Environment section of this report.

 

It is therefore considered timely to seek a change to the purpose of the reserve that better reflects its present values and future use and management.

 

STATUTORY ENVIRONMENT

 

The key elements of the statutory environment in relation to this report are the Land Administration Act 1997 and the Local Government Property Local Law 2010. Each is discussed below under appropriate subheadings.

 

Land Administration Act 1997

 

The Land Administration Act 1997 (LAA) provides for the disposition and management of State land and outlines the processes that relate to reserved land. Reserve 22965 is an ‘A’ Class reserve and clause 42 of the LAA deals with changing the purpose of reserves that have this classification. ‘A’ Class reserves are quite different to other reserves, such as ‘C’ Class reserves, in that any proposed change has to go through a parliamentary process. In this regard, the City is required to write to the Minister for Lands requesting that the purpose of the reserve be changed from ‘Camping and Recreation’ to ‘Recreation and Foreshore Management’ and the Minister is required to lay the proposal before both Houses of Parliament.

 

Local Government Property Local Law 2010

 

This local law sets out the City’s powers for regulating a range of matters, including camping, on land it owns and/or manages. Generally there is a presumption against camping on land managed and/or owned by the City, other than within a caravan park and/or camping ground registered pursuant to the Caravan Parks and Camping Grounds Act 1995 (such as the Kookaburra Caravan Park). Notwithstanding this, the legislative framework does allow the City to issue temporary camping permits for special events.

 

RELEVANT PLANS AND POLICIES