COB-RGB

 

 

 

 

 

Council  Agenda

 

 

 

28 January 2015

 

 

 

 

 

ALL INFORMATION AVAILABLE IN VARIOUS FORMATS ON REQUEST

 

 

 


CITY OF BUSSELTON

MEETING NOTICE AND AGENDA – 28 January 2015

 

 

 

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, 28 January 2015, commencing at 5.30pm.

 

Your attendance is respectfully requested.

 

 

 

Mike Archer

 

CHIEF EXECUTIVE OFFICER

 

16 January 2015


CITY OF BUSSELTON

Agenda FOR THE Council  MEETING TO BE HELD ON 28 January 2015

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 10 December 2014. 5

Committee Meetings. 5

9.2          Minutes of the Community Resource Centre Management Committee held 24 November 2014. 5

9.3          Minutes of the Meelup Regional Park Management Committee held 9 December 2014. 6

9.4          Minutes of the Audit Committee  held on 11 December. 7

10..... Reports of Committee. 8

10.1        Audit Committee - 11/12/2014 - FINANCIAL AUDIT FOR THE YEAR ENDING 30 JUNE 2014 – AUDITOR’S MANAGEMENT REPORT. 8

10.2        Audit Committee - 11/12/2014 - LOCAL GOVERNMENT (AUDIT) REGULATION 17 - AUDIT OF LEGISLATIVE COMPLIANCE. 15

11..... Planning and Development Services Report. 52

11.1        TRANSPORTABLE DWELLINGS AND CONTROLS. 52

11.2        DA14/0408 - RESIDENTIAL ENTERPRISE (COMMERCIAL COOKING) - LOT 16 (No.33) SOUTHERN DRIVE, BUSSELTON.. 71

12..... Engineering and Work Services Report. 78

12.1        VALUATION OF LOT 500 RENDEZVOUS ROAD FOR THE PURPOSE OF A LEASE CONTRACT. 78

13..... Community and Commercial Services Report. 113

Nil

14..... Finance and Corporate Services Report. 114

14.1        FINANCIAL ACTIVITY STATEMENTS – PERIOD ENDING 30 NOVEMBER 2014. 114

14.2        CITY OF BUSSELTON ACTIVITIES IN THOROUGHFARES AND PUBLIC PLACES AND TRADING LOCAL LAW 2015. 138

15..... Chief Executive Officer's Report. 177

15.1        RESIGNATION OF A COMMITTEE DELEGATE FROM THE BUSSELTON AND SUGITO SISTER CITY ASSOCIATION  COMMITTEE AND APPOINTMENT OF REPLACEMENT MEMBER. 177

15.2        CONSIDERATION OF DISTRICT OR WARD-BASED REPRESENTATION AND METHOD OF ELECTION OF THE MAYOR. 179

15.3        PETITION REQUESTING THAT THE NAUTICAL LADY TOWER BE RETAINED ON BUSSELTON FORESHORE. 187

15.4        COUNCILLORS' INFORMATION BULLETIN.. 193

16..... Motions of which Previous Notice has been Given.. 220

Nil

17..... Confidential Reports. 220

Nil

18..... Questions from Members. 220

19..... Public Question Time. 220

20..... Next Meeting Date. 220

21..... Closure. 220

 


Council                                                                                      5                                                                  28 January 2015

 

1.               Declaration of Opening and Announcement of Visitors

2.               Attendance 

Apologies

 

Nil

Approved Leave of Absence

 

Cr John McCallum

3.               Prayer

                   The Prayer Will Be Delivered By Pastor Lee Sykes From Cornerstone Church Of Christ

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 

8.               Disclosure Of Interests

9.               Confirmation and Receipt Of Minutes 

Previous Council Meetings

9.1             Minutes of the Council  held on 10 December 2014

Recommendation

That the Minutes of the Council  Meeting held 10 December 2014 be confirmed as a true and correct record.

 

 

 

 

 

 

Committee Meetings

9.2             Minutes of the Community Resource Centre Management Committee held 24 November 2014

 

RECOMMENDATION

 

1)         That the minutes of a meeting of the Community Resource Centre Management                Committee held on 24 November 2014 be received.

 

2)         That the Council notes the outcomes of the Community Resource Centre Management Committee held on 24 November 2014 being:

 

a)            The Risk & OHS Officer provided the Committee with an update on the Fire Evacuation Plan.

 

b)            The Property and Corporate Compliance Coordinator provided the Committee with an update on alarm call outs, meeting room usage and electricity costs at the Centre.  

 

 

9.3             Minutes of the Meelup Regional Park Management Committee held 9 December 2014

 

RECOMMENDATION

 

1)        That the minutes of a meeting of the Meelup Regional Park Management Committee      held on 9 December 2014 be received.

 

2)        That the Council notes the outcomes and the views of the Meelup Regional Park Management Committee meeting held on 9 December 2014 being:

 

a)            The Committee received the Meelup Environment Officer Report.

 

b)            The Committee requested for Council to approve the Meelup Beach Amenity Improvements Plan, for Council to endorse the Meelup Regional Park 10 Year Financial Plan and include its funding requirements in the City’s revised 10 Year Plan.

 

c)            For Council to continue the 3 year contract arrangement for the Meelup Regional Park Environment Officer position when the existing contract concludes in 2015, to provide access by the Meelup Environment Officer to the City’s IT systems when in the City’s offices,  to increase the hours of the Meelup Regional Park Environment Officer from 20 to 24 hours per week in the new contract and Provide for Committee input to the Meelup Environment Officer tender documentation and tender assessment when the contract is re-advertised.

 

Note from CEO:                 In relation to (c) pertaining to Meelup Regional Park Environmental Officers                         contract of employment, access to Council IT Systems, increase of resources                        for the Environmental Officer and input into Tender Assessment process,                             that the Committee’s views are noted, as these outcomes are implied under                                the Local Government Act 1995 as a function of the CEO’s role with this                                           matter being addressed with the Presiding Member on the 8th January 2015.

 

d)            The Committee discussed the Gourmet Beach BBQ that was held at Castle Bay  in November 2014 and recommended that the Committee makes every effort to assist Brand Events to locate an appropriate permanent venue for Gourmet Escape originally held at Smiths Beach.

 

Note from CEO:                In relation to (d) pertaining to the Gourmet Beach BBQ held last year at Castle Bay, in the short term it is asked that the Council notes the view of the Committee as per the recommendation above. It is also advised, however, that as the Committee’s terms of reference relate only to the  management of Meelup Regional Park, and clearly implied in the Committee recommendation is a consideration of sites outside the park, the resolution is therefore outside the scope of the Committee’s terms of reference. It should be noted, though, that a report is being prepared on the issue of events in the Park more generally; which will initially be presented to the Committee and then for subsequent Council consideration. That report will provide an opportunity for both the Committee and the Council to consider a broad range of issues related to events in the Park, including the Gourmet Beach BBQ event.

 

 

9.4             Minutes of the Audit Committee  held on 11 December

 

RECOMMENDATION

 

1)    That the minutes of a meeting of the Audit Committee held on 11 December 2014 be received.

 

2)    That the Council notes the outcomes of the Audit Committee meeting held on 11 December 2014 being:

 

a)      The Financial Audit for the year ending 30 June 2014 – Auditor’s Management Report is presented for Council consideration at item 10.1 of this agenda.

 

b)      The Committee received the External Audit undertaken for Department of Regional Development relating to Country Local Government Fun Projects report.

 

c)       The Local Government (Audit) Regulation 17 – Audit of Legislative Compliance report is presented to Council at item 10.2 of this agenda. 

 

 

 


Council                                                                                      9                                                                  28 January 2015

10.             Reports of Committee

10.1           Audit Committee - 11/12/2014 - FINANCIAL AUDIT FOR THE YEAR ENDING 30 JUNE 2014 – AUDITOR’S MANAGEMENT REPORT

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

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   30 June 2014 - Auditor's Management Report  

 

This item was considered by the Audit Committee at its meeting on 11 December 2014, the recommendations from which have been included in this report. 

 

PRÉCIS

 

Pursuant to Section 7.9 of the Local Government Act (the ‘Act’), an Auditor is required to examine the accounts and annual financial report submitted by a local government for audit. The Auditor is also required, by 31 December following the financial year to which the accounts and report relate, to prepare a report thereon and forward a copy of that report to:

 

(a)          The Mayor or President

(b)          The Chief Executive Officer; and

(c)           The Minister

 

Furthermore, in accordance with Regulation 10 (4) of the Local Government (Audit) Regulations, where it is considered appropriate to do so, the Auditor may prepare a Management Report to accompany the Auditor’s Report, which is also to be forwarded to the persons specified in Section 7.9 of the Act.

 

Consequent to the finalisation of the City’s 2013/14 financial audit, the Auditor’s Management Report is presented to the Audit Committee for consideration.

 

 

BACKGROUND

 

The City of Busselton has historically sought a Management Report as part of its annual financial audit process. The Management Report provides an overview of the audit process and outcomes, whilst also identifying any matters that, whilst generally not material in relation to the overall audit of the financial report, are nonetheless considered relevant to the day to day operations of the City.

 

Pursuant to its Instrument of Appointment, it is relevant that the Audit Committee considers the Auditor’s Management Report, and where appropriate, makes recommendation/s in respect of the Management Report findings, for formal consideration by the Council.

 

STATUTORY ENVIRONMENT

 

Matters pertaining to the financial audit of a local government authority are detailed within:

§ Part 7 of the Act and;

§ The Local Government (Audit) Regulations 

 

RELEVANT PLANS AND POLICIES

 

Not applicable.

 

FINANCIAL IMPLICATIONS

 

Not applicable.

 

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

 

Not applicable.

 

CONSULTATION

 

Not applicable.

 

OFFICER COMMENT

 

The Auditor’s Management Report provides an overview of the approach undertaken in respect of the annual audit process, and the associated outcomes of the audit. The Management Report also identifies any findings that, whilst generally not material in relation to the overall audit of the financial report, are considered relevant to the day to day operations of the City.

 

As part of the 2013/14 financial audit, the Auditor made one finding, pertaining to excessive annual leave balances. The implications and associated Auditor recommendations are detailed in the attachment to this report, as is the City’s response.  Whilst acknowledging the Auditor’s comments, the City is of the view that a balance needs to be maintained between reducing long outstanding leave balances, and the needs of the organisation in meeting both its escalating level of statutory obligations and the achievement of the Council’s principal projects; both of which require significant input from key employees. Notwithstanding this, the Employee Services Activity Unit will re-establish a process of regularly reporting outstanding annual leave balances to Senior Management, to assist in monitoring leave balances and the scheduling of leave.             

 

CONCLUSION

 

The City achieved an unqualified audit for the financial year ending 30 June 2014. Whilst one audit finding has been identified, the Auditor has rated this as minor (i.e. not of primary concern however still warranting action being taken). As mentioned, processes will be re-established to report on outstanding annual leave balances, to assist in monitoring leave balances and scheduling.      

 

OPTIONS

 

The Audit Committee may determine to make specific recommendations in relation to the audit finding and the action identified by management in addressing this. 

 

TIMELINE FOR IMPLEMENTATION OF OFFICER RECOMMENDATION

 

Not applicable.

 

COMMITTEE RECOMMENDATION AND OFFICER RECOMMENDATION

 

That the Audit Committee recommends to the Council that it notes the 30 June 2014 Auditor’s Management Report.

 

 

 


Council

11

28 January 2015

10.1

Attachment a

30 June 2014 - Auditor's Management Report

 


 


 


 


Council                                                                                      15                                                                28 January 2015

10.2           Audit Committee - 11/12/2014 - LOCAL GOVERNMENT (AUDIT) REGULATION 17 - AUDIT OF LEGISLATIVE COMPLIANCE

SUBJECT INDEX:

Reporting and Compliance

STRATEGIC OBJECTIVE:

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

BUSINESS UNIT:

Governance Services

ACTIVITY UNIT:

Governance Support

REPORTING OFFICER:

Manager, Governance Services - Lynley Rich

Director, Finance and Corporate Services - Matthew Smith

AUTHORISING OFFICER:

Director, Finance and Corporate Services - Matthew Smith

VOTING REQUIREMENT:

Simple Majority

ATTACHMENTS:

Attachment a   Legislative Compliance Report - Local Government Act 1995 and Associated Regulations

Attachment b    External Auditor's Overview Report

Attachment c    Compliance Audit Return - External Audit  

 

This item was considered by the Audit Committee at its meeting on 11 December 2014, the recommendations from which have been included in this report. 

 

PRÉCIS

 

Regulation 17 of the Local Government (Audit) Regulations requires the Chief Executive Officer to review the appropriateness and effectiveness of a local government’s systems and procedures in relation to several matters, including legislative compliance. The results of the review are to be reported to the Audit Committee for review and deliberation, prior to formal presentation to the Council.

 

This report presents the Audit Committee with the results of a review of the appropriateness and effectiveness of the City’s systems and procedures in respect to legislative compliance.     

 

 

BACKGROUND

 

In February 2013, several amendments to the Local Government (Audit) Regulations were mandated.  At this time, a new Regulation number 17 was effected, requiring the CEO to review the appropriateness and effectiveness of a local government’s systems and procedures in relation to risk management, internal control and legislative compliance; the results of which are required to be reported to the Audit Committee.

 

In order to be compliant with the new review and reporting requirements, the initial reviews on risk management, internal control and legislative compliance are all required to be presented to the Audit Committee on or before 31 December 2014.  The Audit Committee has already been presented with the CEO’s reports relating to risk management and internal control and this report constitutes the completion of these requirements as the CEO’s report on legislative compliance.

 

STATUTORY ENVIRONMENT

 

The Local Government (Audit) Regulations now require local governments to present formal reports from the CEO to its Audit Committee.  The regulations provide:

 

17.          CEO to review certain systems and procedures

 

(1)  The CEO is to review the appropriateness and effectiveness of a local government’s systems and procedures in relation to –

(a)  risk management; and

(b)  internal control; and

(c)   legislative compliance.

 

(2)  The review may relate to any or all of the matters referred to in subregulation (1)(a), (b) and (c), but each of those matters is to be the subject of a review at least once every 2 calendar years.

 

(3)  The CEO is to report to the audit committee the results of that review.   

 

In addition to the new regulation, a further subregulation was also introduced as part of existing Regulation 16, further clarifying the Audit Committee’s actions upon receipt of the aforementioned report from the CEO. This addition is detailed as follows:      

 

16.          Audit committee, function of 

 

(c)  is to review a report given to it by the CEO under regulation 17(3) (the CEO’s report) and is to –

 

(i)   Report to the council the results of that review; and

(ii)  Give a copy of the CEO’s report to the council.

 

This report provides an overview of the organisation’s compliance with a range of requirements in the Local Government Act 1995 and its associated regulations, including Elections Regulations, Administration Regulations, Financial Management Regulations and Functions and General Regulations.

 

RELEVANT PLANS AND POLICIES

 

A number of Council Policies guide activities which have assisted the organisation to remain compliant with a range of provisions of the Act and Regulations.  These include, but are not limited to, the Fees, Allowances and Expenses for Elected Members Policy, Purchasing Policy, Regional Price Preference Policy, Meetings, Information Sessions and Decision-making Processes Policy, Complaints Handling Policy and the Code of Conduct.  

 

FINANCIAL IMPLICATIONS

 

There are no direct financial implications associated with the recommendations as detailed within this report. However, should the Audit Committee recommend and the Council determine that future reviews are to be undertaken externally, appropriate budget allocations will be required to be raised in relevant financial years.   

 

STRATEGIC COMMUNITY OBJECTIVES

 

Audits of legislative compliance are one of the mechanisms that enable the organisation to ensure that it has governance systems that deliver responsible, ethical and accountable decision-making.

 

RISK ASSESSMENT

 

Risk assessments have previously been completed on statutory and legislative compliance matters. As the associated risks have been accepted with existing treatments, it is not considered necessary to assess the risk of individual activities against current processes and procedures. Experienced and skilled staff at the City are tacitly aware of where the most significant individual risks lie, and internal processes and procedures have been established to mitigate the associated risks to the organisation.                     

 

CONSULTATION

 

Not applicable.

 

OFFICER COMMENT

 

The initial audit of legislative compliance that has been undertaken for the purposes of reporting to the Audit Committee has focused on the key pieces of legislation that the City is required to implement, being the Local Government Act 1995 and its associated regulations.  In order to do this, the City has completed the full Compliance Audit Return (CAR) that used to be required by the Department of Local Government until 2011.  Since that time, the CAR that local governments are required to submit to the Department has been significantly reduced to focus on the areas of highest risk.

 

However, it is considered relevant for the organisation to undertake an internal examination of all of the other requirements that are no longer required to be reported directly to the Department such that the CEO, the Audit Committee and the Council can be satisfied that the requirements of the Act and Regulations are being observed.  The attached “Legislative Compliance Report - Local Government Act 1995 and Associated Regulations” is presented with all of the areas that were previously examined in the Departmental CAR.  Those areas examined by the external auditor have not been included in that report, however, the external auditor’s overview report and report against compliance with the Act and Regulations is also attached for completeness.

 

It was noted by the external auditor that the organisation has a good understanding of statutory requirements and has applied the correct interpretation to these requirements.  This view is supported by the results of the audit against the other suite of requirements undertaken internally and presented in this report.

 

It must be noted that the organisation is required to implement and adhere to a wide range of other Acts and Regulations, both State and Commonwealth.  The City has commenced a process of examining its compliance with a suite of other statutory instruments in order to be able to provide further reports to the Audit Committee and the Council into the future.  It is not the intention of this process to examine every requirement of every Act that may have an impact on the City’s operations.  There are many Acts and Regulations and this would be a significant undertaking.

 

A small snapshot of some of the other Acts that the City implements or adheres to is provided below:

·    Bush Fires Act 1954

·    Caravan Parks and Camping Grounds Act 1995

·    Cat Act 2011

·    Cemeteries Act 1986

·    Dog Act 1976

·    Emergency  Management Act 2005

·    Environmental Protection Act 1986

·    Health Act 1911

·    Land Administration Act 1997

·    Liquor Control Act 1988

·    Litter Act 1979

·    Local Government (Miscellaneous Provisions) Act 1960

·    Occupational Safety and Health Act 1984

·    Planning and Development Act 2005

·    Public Interest Disclosure Act 2003

·    Rail Safety Act 2010

·    State Records Act 2000

·    Strata Titles Act 1985

In this regard, the City employs experienced and skilled staff in a wide range of operational areas, and in many cases the position descriptions of various positions require knowledge of certain Acts and a skillset in interpretation of legislation.  In addition to this, the City employs a highly skilled legal team which assists with the organisation’s capacity to interpret legislative requirements and implement statutory functions.

 

On this basis, prior to a decision being made to audit compliance with a certain Act it is intended that a risk assessment would be undertaken.  The City would need to establish criteria by which a decision would be made as to whether an audit was undertaken or not.  In this regard, there would need to be a balance between ensuring that good practices of complying with legislation are in place and the assessment of the controls in place, with demonstrating that there will be benefits to the organisation in obtaining this knowledge.  In essence, this would constitute a minor cost benefit analysis and process of prioritisation prior to commencing any audit.

 

With regard to the Local Government Act 1995 and its associated regulations, the City’s policies, procedures and practices, along with its skilled and experienced staff, have ensured another solid result from the audit process.  This view is supported by the external auditor’s praise of the enthusiasm and knowledge displayed by City employees and the high standard of records inspected.  It is recommended that the Audit Committee receives and notes the outcome of this audit of compliance and notes the City’s intention to continue a series of reviews of other legislative instruments after assessing the risks presented by potential non-compliance with those Acts.

 

CONCLUSION

 

This report presents the final assessment required by Local Government (Audit) Regulation 17, prior to 31 December, 2014 as required.

 

OPTIONS

 

The recommendation is for the report to be received and noted and then provided to the Council.  The Audit Committee may determine that more information is required prior to presenting the report to the Council.

 

TIMELINE FOR IMPLEMENTATION OF OFFICER RECOMMENDATION

 

The recommendation is for the report to be received and noted and then provided to the Council.  The report can be presented to the Council at its meeting on 28 January, 2015.

 

COMMITTEE RECOMMENDATION AND OFFICER RECOMMENDATION

 

That the Audit Committee:

 

1.    In accordance with Regulation 17 of the Local Government (Audit) Regulations, receives this report pertaining to an audit of legislative compliance, notes the outcomes of the review and provides the report to the Council in accordance with Regulation 16.

 

 

 


Council

19

28 January 2015

10.2

Attachment a

Legislative Compliance Report - Local Government Act 1995 and Associated Regulations

 

 

Reference to Statute

 

Question

Response

Comments

 

Disclosure of Interest

 

S5.66(b) Local Government Act 1995

Did the person presiding at the meeting, on all occasions, when given a member’s written financial interest disclosure by the CEO, bring its contents to the attention of the persons present immediately before any matters to which the disclosure relates were discussed

NA

 

S5.71(a) Local Government Act 1995

Did the CEO disclose to the Mayor or the President the nature of the interest as soon as practicable after becoming aware that he or she has an interest in the matter to which the delegated power or duty related

NA

 

S5.71(b) Local Government Act 1995

Did an employee disclose to the CEO the nature of the interest as soon as practicable after becoming aware that he or she had an interest in the matter to which the delegated power or duty related

NA

 

S5.71 Local Government Act 1995

On all occasions were delegated powers and duties not exercised by employees that had an interest in the matter to which the delegated power or duty related

Yes

 

 

 

Elections

 

S4.17(3) Local Government Act 1995

Was approval sought from the Electoral Commissioner where Council allowed a vacancy to remain unfilled as a result of a Councillor’s position becoming vacant under S2.32 and in accordance with S4.17(3)(a) and (b)

NA

 

S4.20(2) Local Government Act 1995

Did the local government appoint a person other than the CEO to be the returning officer of the local government for an election or all other elections held while that appointment applied, after having written agreement of the person concerned and the Electoral Commissioner

NA

The election was conducted by the Western Australian Electoral Commission as a postal election and not as an in-person election requiring the internal appointment of a returning officer

S4.20(4) Local Government Act 1995

Did the local government declare the Electoral Commissioner to be responsible for the conduct of an election, after having first obtained the written agreement of the Electoral Commissioner

Yes

The City of Busselton had a pre-existing written agreement in place with the Electoral Commissioner

S4.20(5) Local Government Act 1995

Where a declaration had not already been made, was a declaration made under S4.20(4) prior to the 80th day before the election day

NA

Refer to comment above

S4.32(4) Local Government Act 1995

Did the CEO, within 14 days after receiving a claim for enrolment, decide whether the claimant was eligible or not eligible under S4.30(1)(a) and (b) and accept or reject the claim accordingly

Yes

 

S4.32(6) Local Government Act 1995 and Elections Regulation 13

Did the CEO record on all occasions the decision in the owners and occupiers register in accordance with Regulation 13 of the Local Government (Elections) Regulations 1997 and give written notice of the decision to the claimant without delay, for eligibility to enrol

Yes

 

S4.32(5) Local Government Act 1995

Did the CEO give written notice to the person before making a decision under subsection (1)(c) and allow 28 days for the person to make submissions on the matter

NA

 

S4.35(3) Local Government Act 1995

Did the CEO after making a decision under subsection (1)(c) give written notice of it to the person

NA

 

S4.35(5) Local Government Act 1995

Did the CEO, on receipt of advice of the Electoral Commissioner’s decision on an appeal, take any action necessary to give effect to that decision

NA

No appeals processed

S4.35(6) Local Government Act 1995

Did the CEO give written notice on all occasions to the person, where after considering submissions made under subsection 2, the CEO decided that the person was still eligible under S4.30 to be enrolled to vote at elections for the district or ward

NA

 

S4.35(7) Local Government Act 1995

Did the CEO, on all occasions, record any decision under subsection (1) or (6) in the register referred to in S4.32(6)

Yes

All adjustments made on the basis of ineligibility or death have been recorded in the register

S4.39(2) Local Government Act 1995

Did the CEO on or after the 70th day, but no later than the 56th day give statewide public notice of the time and date of the close of enrolments

Yes

This was undertaken by the Electoral Commission under the contract for electoral services, however, the notice was also advertised locally by the City of Busselton

S4.41(1) Local Government Act 1995

Did the CEO prepare an owners and occupiers role for the election on or before the 36th day before election day

Yes

While the election was conducted by the Electoral Commission, this matter remains a responsibility of the CEO.  The owners and occupiers role which records all eligible voters due to being an absentee landowner or lessee of rateable property is prepared by the CEO and sent to the Commission to be combined with the residents’ role for voting eligibility purposes

S4.41(2) Local Government Act 1995

Did the CEO certify that the owners and occupiers roll included the names of all persons who were electors of the district or ward under S4.30 at the close of enrolments

Yes

 

S4.43(1) Local Government Act 1995

Where the CEO was returning officer (RO) and the rolls were not consolidated, did the RO delete the names of any person from the owners and occupiers roll whose name also appeared on the residents roll on or before the 22nd day before election day

NA

 

S4.47(1) Local Government Act 1995

Where the CEO was RO, did the RO give statewide public notice calling for nominations of candidates for the election on or after the 56th day before election day but no later than the 45th day before election day

NA

The CEO was not RO.  This was undertaken by the Electoral Commission under the contract for electoral services, however, the notice was also advertised locally by the City of Busselton

S4.47(2)(a) Local Government Act 1995

Did the notice referred to in S4.47(1) calling for nominations specify the kind of election to be held and the vacancy or vacancies to be filled

Yes

 

S4.47(2)(b) Local Government Act 1995

Did the notice referred to in S4.47(1) calling for nominations specify the place where nominations may be delivered or sent

Yes

 

S4.47(2)(c) Local Government Act 1995

Did the notice referred to in S4.47(1) calling for nominations specify the period within which nominations had to be delivered or sent

Yes

 

S4.47(2)(d) Local Government Act 1995

Did the notice referred to in s4.47(1) calling for nominations specify any other arrangements made for the receipt by the returning officer of nominations

NA

 

S4.61(2) Local Government Act 1995

Did the Council of the local government, where it decided to conduct the election as a postal election, make that decision by absolute majority

Yes

The decision to appoint the Electoral Commissioner to conduct all elections within a specified period was made by absolute majority

S4.61(3) Local Government Act 1995

Where a decision was made under s4.61(2) and a relevant declaration had not already been made, was that decision made prior to the 80th day before election day

NA

The agreement was already in place

S4.64 Local Government Act 1995

Where the CEO was RO, did the RO give Statewide public notice (election notice) as soon as practicable after preparations for the election, but no later than on the 19th day before election day, in accordance with regulations that included details of how, when and where the election would be conducted and the names of the candidates

Yes

The CEO was not RO.  This was undertaken by the Electoral Commission under the contract for electoral services, however, the notice was also advertised locally by the City of Busselton

Local Government (Elections) Regulation 7

Did a person, before acting as an electoral officer, make the required declaration as stated in election regulation 7

Yes

 

Local Government (Elections) Regulation 8(2)

Where the CEO was RO, did the RO prepare and adopt a Code of Conduct for any Extraordinary Elections

NA

 

Local Government (Elections) Regulation 8(3)

Where the CEO was RO, did the RO provide each electoral officer a copy or access to a copy of the electoral code of conduct for any Extraordinary Elections

NA

 

Local Government (Elections) Regulation 13(1)

Has the relevant information as listed in Election Reg 13 been recorded in the owners and occupiers register

Yes

 

Local Government (Elections) Regulation 13(4)

Did the CEO amend the register from time to time to make sure that the information recorded in it is accurate

Yes

 

Local Government (Elections) Regulation 17

Did the local government keep an enrolment eligibility claim form, if accepted, a copy of a notice of acceptance for 2 years after the claim and notice expired, and a copy of a notice of rejection for 2 years after the claim was rejected   

Yes

 

Local Government (Elections) Regulation 26(4)

Did the CEO or an employee of the local government appointed as Returning Officer keep the deposit referred to in s4.49(d) separate from other money and credited to a fund of the local government

NA

The CEO was not RO, however, even under the contract for services with the Electoral Commission, the City undertook the cash receipting process and held the deposits in accordance with these requirements

Local Government (Elections) Regulation 30G(1)

Did the CEO establish and maintain an electoral gift register and ensure that all 'disclosure of gifts' forms completed by candidates and received by the CEO were placed on the electoral gift register at the time of receipt by the CEO and in a manner that clearly identifies and distinguishes the candidates

Yes

The register was established, however, no gifts were disclosed by any candidate

Local Government (Elections) Regulation 30G(3)

Did the CEO remove any "disclosure of gifts" forms completed by unsuccessful candidates from the electoral gift register in accordance with the period under regulation 30C and retain those forms separately for a period of at least 2 years

NA

 

Local Government (Elections) Regulation 30H

Has the electoral gift register been kept at the appropriate local government offices

Yes

 

Local Government (Elections) Regulation 40

Has a postal voters register been kept of electors whose applications are under regulation 37(1)(b) and are accepted under regulation 38(1), which contains the enrolment details of each elector included on it and any ward in respect of which the elector is registered

Yes

 

Local Government (Elections) Regulation 81

Was the report relating to an election under s4.79 provided to the Minister within 14 days after the declaration of the result of the election

Yes

This was the responsibility of the Electoral Commission under the contract for services with the City

 

Executive Functions

 

S3.18(3)(a) Local Government Act 1995

Has the local government satisfied itself that the services and facilities that it provides ensure integration and co-ordination of services and facilities between governments

Yes

 

S3.32(1) Local Government Act 1995

Was a notice of intended entry given to the owner or occupier of the land, premises or thing that had been entered

Yes

 

S3.50 Local Government Act 1995

Did the local government close a thoroughfare wholly or partially for a period not exceeding 4 weeks under the guidelines of 3.50

Yes

 

S3.18(3)(b) Local Government Act 1995

Has the local government satisfied itself that the services and facilities that it provides avoid unnecessary duplication of services or competition particularly with the private sector

Yes

 

S3.18(3)(c) Local Government Act 1995

Has the local government satisfied itself that the services and facilities that it provides ensure services and facilities are properly managed

Yes

 

S3.40A(1) Local Government Act 1995

Where in the opinion of the local government a vehicle was an abandoned vehicle wreck, was it removed and impounded by an employee authorised (for that purpose) by the local government

Yes

 

S3.40A(2) Local Government Act 1995

Where the owner of the vehicle was identified within 7 days after its removal under s3.40A(1), did the local government give notice to that person advising that the vehicle may be collected from a place specified during such hours as are specified in the notice

Yes

 

S3.40A(3) Local Government Act 1995

Where notice was given under s3.40A(2) did it include a short statement of the effect of subsection (4)(b) and the effect of the relevant provisions of sections 3.46 and 3.47

Yes

 

S3.51(3) Local Government Act 1995

Did the local government give notice of what is proposed to be done giving details of the proposal and inviting submissions from any person who wishes to make a submission and allow a reasonable time for submissions to be made and consider any submissions made

NA

 

 

S3.52(4) Local Government Act 1995

Has the local government kept plans for the levels and alignments of public thoroughfares that are under its control or management, and made those plans available for public inspection

Yes

Plans, or detail of levels and alignments, in either hard copy or electronic format can be made available upon request.  No public requests for access have been made

S3.32(2) Local Government Act 1995

Did the notice of intended entry specify the purpose for which the entry was required

Yes

 

S3.32(2) Local Government Act 1995

Was the notice of intended entry given not less than 24 hours before the power of entry was exercised

Yes

 

 

Finance

 

S5.53 Local Government Act 1995, Administration Regulation 19B

Has the local government prepared an annual report for the financial year ended 30 June 2010 that contained the prescribed information under the Act and Regulations

Yes

 

S5.54(1), (2) Local Government Act 1995

Was the annual report accepted by absolute majority by the local government  by 31 December 2013

Yes

 

S5.54(1), (2) Local Government Act 1995

Where the Auditor’s report was not available in time for acceptance by 31 December, was it accepted no more than two months after the Auditor’s report was made available

NA

 

S5.55 Local Government Act 1995

Did the CEO give local public notice of the availability of the annual report as soon as practicable after the local government accepted the report

Yes

 

S5.56 Local Government Act 1995, Administration Regulation 19C

Has the local government made a Strategic Community Plan for its district in respect of the period specified in the plan (being at least 10 financial years)

Yes

 

Local Government Administration Regulation 19C

Before a Strategic Community Plan, or modifications to a plan were adopted under regulation 19C, did the local government consult with its electors and ratepayers

Yes

 

S5.94 , 5.95 Local Government Act 1995

Did the local government allow any person attending the local government during office hours to inspect information, free of charge, listed in s5.94 of the Act and subject to s5.95 whether or not the information was current at the time of inspection

Yes

 

S5.96 Local Government Act 1995

Where a person inspected information under Part 5, Division 7 of the Act and requested a copy of that information, did the local government ensure that copies were available at a price that did not exceed the cost of providing those copies

Yes

Photocopying charges are reviewed annually. The price per copy does not exceed the cost of providing the service

 

S5.98 Local Government Act 1995, Administration Regulation 30

Was the fee made available to elected members for attending meetings within the prescribed range

Yes

Following the Salaries and Allowances Tribunal’s determination on 19 June, 2013, the Fees, Allowances and Expenses for Elected Members Policy was updated on 10 July 2013, ensuring that any allowances established were within prescribed ranges

S5.98 Local Government Act 1995, Administration Regulation 31

Was the reimbursement of expenses to elected members within the prescribed ranges or as prescribed

                                                          

Yes

Refer comment above

S5.98A Local Government Act 1995, Administration Regulation 33A

Where a local government decided to pay the deputy mayor or the deputy president an allowance, was it resolved by absolute majority

Yes

This decision was included in the policy adoption mentioned above, a decision made by absolute majority

S5.98A Local Government Act 1995, Administration Regulation 33A

Where a local government decided to pay the deputy mayor or the deputy president an allowance, was it up to (or below) the prescribed percentage of the annual local government allowance to which the mayor or president is entitled under section 5.98(5)

Yes

 

S5.99 Local Government Act 1995, Administration Regulation 34

Where a local government decided to pay Council members an annual fee in lieu of fees for attending meetings, was it resolved by absolute majority

Yes

This decision was included in the policy adoption mentioned above, a decision made by absolute majority

S5.99 Local Government Act 1995, Administration Regulation 34

Where a local government decided to pay Council members an annual fee in lieu of fees for attending meetings, was it within the prescribed range

Yes

Following the Salaries and Allowances Tribunal’s determination on 19 June, 2013, the Fees, Allowances and Expenses for Elected Members Policy was updated on 10 July 2013, ensuring that any allowances established were within prescribed ranges

S5.99A Local Government Act 1995, Administration Regulation 34A, AA, AB

Where a local government decided to pay Council members an allowance instead of reimbursing telephone, facsimile machine rental charges and other telecommunication, information technology, travelling and accommodation expenses, was it resolved by absolute majority

Yes

This decision was included in the policy adoption mentioned above, a decision made by absolute majority

S5.99A Local Government Act 1995, Administration Regulation 34A, AA, AB

Where a local government decided to pay Council members an allowance instead of reimbursing telephone, facsimile machine rental charges and other telecommunication, information technology, travelling and accommodation expenses, was it within the prescribed range

Yes

Following the Salaries and Allowances Tribunal’s determination on 19 June, 2013, the Fees, Allowances and Expenses for Elected Members Policy was updated on 10 July 2013, ensuring that any allowances established were within prescribed ranges

S5.1000(1) Local Government Act 1995

Did the local government pay a fee for attending committee meetings only to a committee member who was a council member

Yes

 

S5.100(2) Local Government Act 1995

Where the local government decided to reimburse a committee member, who was not a council member or employee, for an expense incurred by the person in relation to a matter affecting the local government, was it within the prescribe range

NA

 

S6.8 Local Government Act 1995

Was expenditure that the local government incurred from its municipal fund, but not included in its annual budget, authorised in advance on all occasions by absolute majority resolution

Yes

A number of budget amendments throughout the year were processed as reports to the Finance Committee and Council accordingly

S6.8(1)(c) Local Government Act 1995

Did the Mayor or President authorise expenditure from the municipal fund in an emergency. (Please indicate circumstances in the "Comments" column)

NA

 

S6.8 Local Government Act 1995

In relation to expenditure that the local government incurred from its municipal fund that was authorised in advance by the mayor or president in an emergency, was it reported on all occasions to the next ordinary meeting of council

NA

 

S6.12, 6.13, 6.16(1), (3) Local Government Act 1995

Did Council at the time of adopting its budget, determine the granting of a discount or other incentive for early payment by absolute majority

NA

No early payment discount or incentive offered

S6.12, 6.13, 6.16(1), (3) Local Government Act 1995

Did Council determine the setting of an interest rate on money owing to Council by absolute majority

NA

No interest on monies outstanding other than rates

S6.12, 6.13, 6.16(1), (3) Local Government Act 1995

Did Council determine to impose or amend a fee or charge for any goods or services provided by the local government by absolute majority. (Note: this applies to money other than rates and service charges)

Yes

 

S6.17(3) Local Government Act 1995

Were the fees or charges imposed for receiving an application for approval, granting an approval, making an inspection and issuing a licence, permit, authorisation or certificate, limited to the cost of providing the service or goods

Yes

Whilst the majority of these types of fees are not determined by the Council, those that are have been reviewed cognisant of the cost of providing the goods and services

 

S6.17(3) Local Government Act 1995

Were the fees or charges imposed for any other service prescribed in section 6.16 (2)(f), limited to the cost of providing the service or goods

NA

All fees and charges covered under Section 6.12(2)(a) to (e)

 

S6.19 Local Government Act 1995

After the budget was adopted, did the local government give local public notice for all fees and charges stating its intention to introduce the proposed fees or charges and the date from which it proposed to introduce the fees or charges

Yes

 

S6.20(2) Local Government Act 1995, Financial Management Regulation 20

On each occasion where the local government exercised the power to borrow,  was the Council decision to exercise that power by absolute majority (Only required where the  details of the proposal were not included in the annual budget for that financial year)

NA

 

S6.76(6) Local Government Act 1995

Was the outcome of an objection under section 6.76(1) promptly conveyed to the person who made the objection including a statement of the local government’s decision on the objection and its reasons for that decision

Yes

 

Local Government Financial Management Regulation 5

Has efficient systems and procedures been established by the CEO of a local government as listed in Finance Reg 5

Yes

As evidenced by results of externally conducted Financial Management System Review undertaken periodically

Local Government Financial Management Regulation 6

Has the local government ensured that an employee to whom is delegated responsibility for the day to day accounting or financial management operations of a local government is not also delegated the responsibility for conducting an internal audit or reviewing the discharge of duties by that employee

Yes

 

 

Local Government Employees

 

S5.36(4), 5.37(3) Local Government Act 1995, Administration Regulation 18A(1)

Did the local government advertise for the position of CEO and for designated senior employees in a newspaper circulated generally throughout the State

NA

No recruitment processes for CEO or senior executive employees have been undertaken

S5.36(4), 5.37(3) Local Government Act 1995, Administration Regulation 18A

Did all advertisements for the position of CEO and for designated senior employees contain details of the remuneration and benefits offered

NA

 

S5.36(4), 5.37(3) Local Government Act 1995, Administration Regulation 18A

Did all advertisements for the position of CEO and for designated senior employees contain details of the place where applications for the position were to be submitted

NA

 

S5.36(4), 5.37(3) Local Government Act 1995, Administration Regulation 18A

Did all advertisements for the position of CEO and for designated senior employees detail the date and time for closing of applications

NA

 

S5.36(4), 5.37(3) Local Government Act 1995, Administration Regulation 18A

Did all advertisements for the position of CEO and for designated senior employees indicate the duration of the proposed contract

NA

 

S5.36(4), 5.37(3) Local Government Act 1995, Administration Regulation 18A

Did all advertisements for the position of CEO and for designated senior employees provide contact details of a person to contact for further information

NA

 

S5.37(2) Local Government Act 1995

Did the CEO inform council of each proposal to employ or dismiss a designated senior employee

NA

 

S5.38 Local Government Act 1995

Was the performance of each employee, employed for a term of more than one year, (including the CEO and each senior employee), reviewed within the most recently completed 12 months of their term of employment

Yes

 

Local Government Administration Regulation 18D

Where Council considered the CEO’s performance review did it decide to accept the review with or without modification (if Council did not accept the review, the preferred answer is N/A & refer Q12)            

Yes

 

Local Government Administration Regulation 18D

Where the Council considered the CEO’s performance review, but decided not to accept the review, did it decide to reject the review (if Council accepted the review, the preferred answer is N/A refer Q11)

NA

 

S5.39 Local Government Act 1995

During the period covered by this Return, were written performance based contracts in place for the CEO and all designated senior employees who were employed since 1 July 1996

Yes

 

S5.39 Local Government Act 1995, Administration Regulation 18B

Does the contract for the CEO and all designated senior employees detail the maximum amount of money payable if the contract is terminated before the expiry date. This amount is the lesser of the value of one year’s remuneration under the contract

Yes

 

S5.39 Local Government Act 1995, Administration Regulation 18B

Does the contract for the CEO and all designated senior employees detail the maximum amount of money payable if the contract is terminated before the expiry date and this amount is the lesser of the value of the remuneration they would be entitled to had the contract not been terminated

Yes

 

S5.50(1) Local Government Act 1995

Did Council adopt a policy relating to employees whose employment terminates, setting out the circumstances in which council would pay an additional amount to that which the employee is entitled under a contract or award

Yes

 

S5.50(1) Local Government Act 1995

Did Council adopt a policy relating to employees whose employment terminates, setting out the manner of assessment of an additional amount

Yes

 

S5.50(2) Local Government Act 1995

Did the local government give public notice on all occasions where council made a payment that was more than the additional amount set out in its policy

NA

 

S5.53(2)(g) Local Government Act 1995, Administration Regulation 19B

For the purposes of section 5.53(2)(g) did the annual report of a local government for a financial year contain the number of employees of the local government entitled to an annual salary of $100,000 or more

Yes

Provided on page 22 of the City of Busselton’s 2012-13 annual report

S5.53(2)(g) Local Government Act 1995, Administration Regulation 19B

For the purposes of section 5.53(2)(g) did the annual report of a local government for a financial year contain the number of those employees with an annual salary entitlement that falls within each band of $10,000 and over $100,000

Yes

Provided on page 22 of the City of Busselton’s 2012-13 annual report

Local Government Administration Regulation 33

Was the allowance paid to the mayor or president for the purposes of s5.98(5) within the prescribed range

Yes

Following the Salaries and Allowances Tribunal’s determination on 19 June, 2013, the Fees, Allowances and Expenses for Elected Members Policy was updated on 10 July 2013, ensuring that any allowances established were within prescribed ranges

 

Local Laws

 

S3.12(2) Local Government Act 1995, Functions and General Regulation 3

On each occasion that Council resolved to make a local law, did the person presiding at the Council meeting give notice of the purpose and effect of each proposed local law in the manner prescribed in Functions and General Regulation 3

Yes

 

S3.12(4) Local Government Act 1995

Have all Council’s resolutions to make local laws been by absolute majority

Yes

 

S3.12(4) Local Government Act 1995

Have all Council’s resolutions to make local laws been recorded as such in the minutes of the meeting     

Yes

 

S3.12(6) Local Government Act 1995

After the local law was published in the Gazette, did the local government give local public notice summarising the purpose and effect of the local law and the day on which it came into operation

Yes

 

S3.12(6) Local Government Act 1995

After the local law was published in the Gazette, did the local government give local public notice advising that copies of the local law may be inspected or obtained from its office

Yes

 

S3.16(1) Local Government Act 1995

Have all reviews of local laws under section 3.16(1) of the Act been carried out within a period of 8 years

Yes

The City continues a significant review process of all of its local laws in conjunction with the Policy and Legislation Committee

S3.16(1), (2) Local Government Act 1995

If the local government carried out a review of a local law under section 3.16 of the Act, to determine whether or not the local law should be repealed or amended, did it give Statewide public notice stating that it intended to review the local law

Yes

 

S3.16(1), (2) Local Government Act 1995

If the local government carried out a review of a local law under section 3.16 of the Act, to determine whether or not the local law should be repealed or amended, did it give Statewide public notice advising that a copy of the local law could be inspected or obtained at the place specified in the notice

Yes

 

S3.16(1), (2) Local Government Act 1995

If the local government carried out a review of a local law under section 3.16 of the Act, to determine whether or not the local law should be repealed or amended, did it give Statewide public notice detailing the closing date for submissions about the local law

Yes

 

S3.16(3) Local Government Act 1995

Did the local government (after the last day for submissions) prepare a report of the review and have it submitted to Council

Yes

 

S3.16(4) Local Government Act 1995

Was the decision to repeal or amend a local law determined by absolute majority on all occasions

Yes

 

 

Meeting Process

 

 

 

 

S2.25(1)(3) Local Government Act 1995

Where Council granted leave to a member from attending 6 or less consecutive ordinary meetings of Council was it by Council resolution        

Yes

 

S2.25(1)(3) Local Government Act 1995

Where Council granted leave to a member from attending 6 or less consecutive ordinary meetings of Council, was it recorded in the minutes of the meeting at which the leave was granted

Yes

 

S2.25(3) Local Government Act 1995

Where Council refused to grant leave to a member from attending 6 or less consecutive ordinary meetings of Council, was the reason for refusal recorded in the minutes of the meeting

NA

 

S2.25(2) Local Government Act 1995

Was Ministerial approval sought (on all occasions) before leave of absence was granted to an elected member in respect of more than 6 consecutive ordinary meetings of council            

NA

 

S5.4 Local Government Act 1995

On all occasions when the mayor or president called an ordinary or special meeting of Council, was it done by notice to the CEO setting out the date and purpose of the proposed meeting

Yes

 

S5.5 Local Government Act 1995

On all occasions when councillors called an ordinary or special meeting of Council was it called by at least 1/3 (one third) of the councillors, by notice to the CEO setting out the date and purpose of the proposed meeting

NA

 

S5.5(1) Local Government Act 1995

Did the CEO give each council member at least 72 hours notice of the date, time, place and an agenda for each ordinary meeting of Council

Yes

 

S5.5(2) Local Government Act 1995

Did the CEO give each council member notice before the meeting, of the date, time, place and purpose of each special meeting of Council

Yes

 

S5.7 Local Government Act 1995

Did the local government seek approval (on each occasion as required) from the Minister or his delegate, for a reduction in the number of offices of member needed for a quorum at a Council meeting 

NA

 

S5.7 Local Government Act 1995

Did the local government seek approval (on each occasion as required) from the Minister or his delegate, for a reduction in the number of offices of member required for absolute majorities

NA

 

S5.8 Local Government Act 1995

Did the local government ensure all Council committees (during the review period) were established by an absolute majority

Yes

Resolved on 9 October 2013 (C1310/267)

S5.10(1)(a) Local Government Act 1995

Did the local government ensure all members of Council committees, during the review period, were appointed by an absolute majority (other than those persons appointed in accordance with section 5.10 (1)(b))

Yes

 

S5.10(2) Local Government Act 1995

Was each Council member given their entitlement during the review period, to be appointed as a committee member of at least one committee, as referred to in section 5.9(2)(a) & (b) of the Act

Yes

 

S5.12(1) Local Government Act 1995

Were Presiding members of committees elected by the members of the committees (from amongst themselves) in accordance with Schedule 2.3, Division 1 of the Act

Yes

 

S5.12(2) Local Government Act 1995

Were Deputy presiding members of committees elected by the members of the committee (from amongst themselves) in accordance with Schedule 2.3 Division 2 of the Act

Yes

 

S5.15 Local Government Act 1995

Where the local government reduced a quorum of a committee meeting, was the decision made by absolute majority on each occasion

NA

 

S5.21(4) Local Government Act 1995

When requested by a member of Council or committee, did the person presiding at a meeting  ensure an individual vote or the vote of all members present, were recorded in the minutes

NA

No such requests were made on the basis that it is the standard practice, in accordance with the Standing Orders, for the votes of all members to be recorded in the minutes

S5.22(1) Local Government Act 1995

Did the person presiding at a meeting of a Council or a committee ensure minutes were kept of the meeting’s proceedings

Yes

 

S5.22(2), (3) Local Government Act 1995

Were the minutes of all Council and committee meetings submitted to the next ordinary meeting of Council or committee, as the case requires, for confirmation

Yes

 

S5.22(2), (3) Local Government Act 1995

Were the minutes of all Council and committee meetings signed to certify their confirmation by the person presiding at the meeting at which the minutes of Council or committee were confirmed

Yes

 

S5.23(1) Local Government Act 1995

Were all council meetings open to members of the public (subject to section 5.23(2) of the Act)            

Yes

 

S5.23(1) Local Government Act 1995

Were all meetings of committees to which a power or duty had been delegated open to members of the public (subject to section 5.23(2) of the Act)

Yes

 

S5.23(2), (3) Local Government Act 1995

On all occasions, was the reason, or reasons, for closing any Council or committee meeting to members of the public, in accordance with the Act

Yes

 

S5.23(2), (3) Local Government Act 1995

On all occasions, was the reason, or reasons, for closing any Council or committee meeting to members of the public recorded in the minutes of that meeting

Yes

 

S5.24(1) Local Government Act 1995, Administration Regulations 5, 6

Was a minimum time of 15 minutes allocated for questions to be raised by members of the public and responded to at every ordinary meeting of Council

Yes

 

S5.24(1) Local Government Act 1995, Administration Regulations 5, 6

Was a minimum time of 15 minutes allocated for questions to be raised by members of the public and responded to at every special meeting of Council

Yes

 

S5.24(1) Local Government Act 1995, Administration Regulations 5, 6

Was a minimum time of 15 minutes allocated for questions to be raised by members of the public and responded to at every meeting of a committee to which the local government has delegated a power or duty

Yes

 

Local Government Administration Regulation 8

Was a period of 30 minutes allowed from the advertised commencement time before any Council or committee was adjourned due to the lack of a quorum

NA

 

Local Government Administration Regulation 9

Was voting at Council or committee meetings conducted so that no vote was secret

Yes

 

Local Government Administration Regulation 10(1)

Were all motions to revoke or change decisions at Council or committee meetings supported in the case where an attempt to revoke or change the decision had been made within the previous 3 months but failed, by an absolute majority

NA

 

Local Government Administration Regulation 10(1)

Were all motions to revoke or change decisions at Council or committee meetings supported in any other case, by at least one third of the number of officers of member (whether vacant or not) of the Council or committee

Yes

 

Local Government Administration Regulation 10(2)

Were all decisions to revoke or change decisions made at Council or committee meetings made (in the case where the decision to be revoked or changed was required to be made by an absolute majority or by a special majority), by that kind of majority

Yes

 

Local Government Administration Regulation 10(2)

Were all decisions to revoke or change decisions made at Council or committee meetings made in any other case, by an absolute majority

Yes

 

Local Government Administration Regulation 11

Did the contents of minutes of all Council or committee meetings include the names of members present at the meeting

Yes

 

Local Government Administration Regulation 11

Did the contents of minutes of all Council or committee meetings include where a member entered or left the meeting, the time of entry or departure, as the case requires, in the chronological sequence of the business of the meeting

Yes

 

Local Government Administration Regulation 11

Did the contents of minutes of all Council or committee meetings include details of each motion moved at the meeting, including details of the mover and outcome of the motion           

Yes

 

Local Government Administration Regulation 11

Did the contents of minutes of all Council or committee meetings include details of each decision made at the meeting

Yes

 

Local Government Administration Regulation 11

Did the contents of the minutes of all Council or committee meetings include, where the decision was significantly different from written recommendation of a committee or officer, written reasons for varying that decision

Yes

 

Local Government Administration Regulation 11

Did the contents of minutes of all Council or committee meetings include a summary of each question raised by members of the public and a summary of the response given

Yes

 

Local Government Administration Regulation 11

Did the contents of minutes of all Council or committee meetings include in relation to each disclosure made under sections 5.65 or 5.70, where the extent of the interest has been disclosed, the extent of the interest

NA

 

Local Government Administration Regulation 12(1)

Did the local government, at least once during the period covered by this return, give local public notice for the next twelve months of the date, time and place of ordinary Council meetings

Yes

 

Local Government Administration Regulation 12(1)

Did the local government, at least once during the period covered by this return, give local public notice for the next twelve months of the date, time and place of those committee meetings that were required under the Act to be open to the public or that were proposed to be open to the public

Yes

 

Local Government Administration Regulation 12(2)

Did the local government give local public notice of any changes to the dates, time or places referred to in the question above

NA

 

Local Government Administration Regulation 12(3), (4)

In the CEO’s opinion, where it was practicable, were all special meetings of Council (that were open to members of the public) advertised via local public notice

Yes

 

Local Government Administration Regulation 12(3), (4)

Did the notice referred to in the question above include details of the date, time, place and purpose of the special meeting

Yes

 

Local Government Administration Regulation 13

Did the local government make available for public inspection unconfirmed minutes of all Council meetings within 10 business days after the Council meetings

Yes

 

Local Government Administration Regulation 13

Did the local government make available for public inspection unconfirmed minutes of all committee meetings within 5 business days after the committee meetings

No

There have been two occasions identified where the availability of the minutes of a Committee meeting has exceeded the prescribed five days

Local Government Administration Regulation 14 (1), (2)

Were notice papers, agenda and other documents relating to any Council or committee meeting, (other than those referred to in Admin Reg 14(2)) made available for public inspection

Yes

 

Local Government Administration Regulation 14A

On all occasions where a person participated at a Council or committee meeting by means of instantaneous communication, (by means of audio, telephone or other instantaneous contact) as provided for in Administration Regulation 14A, did the Council approve of the arrangement by absolute majority

NA

 

Local Government Administration Regulation 14A

On all occasions where a person participated at a Council or committee meeting by means of instantaneous communication, (as provided for in Administration Regulation 14A) was the person in a suitable place as defined in Administration Regulation 14A(4)

NA

 

S5.27(2) Local Government Act 1995

Was the annual general meeting of electors held within 56 days of the local government’s acceptance of the annual report for the previous financial year

Yes

The annual report was accepted on 13 November 2013 and the annual general meeting of electors was held on 3 December 2013

S5.29 Local Government Act 1995

Did the CEO convene all electors’ meetings by giving at least 14 days local public notice and each Council member at least 14 days notice of the date, time, place and purpose of the meeting

Yes

 

S5.32 Local Government Act 1995

Did the CEO ensure the minutes of all electors’ meetings were kept and made available for public inspection before the Council meeting at which decisions made at the electors’ meeting were first considered

Yes

 

S5.33(1) Local Government Act 1995

Were all decisions made at all electors’ meetings considered at the next ordinary Council meeting, or, if not practicable, at the first ordinary Council meeting after that, or at a special meeting called for that purpose

Yes

The decisions from the electors meeting held on 3 December 2013 were considered by the Council on 29 January 2014

S5.33(2) Local Government Act 1995

Were the reasons for Council decisions in response to decisions made at all electors’ meetings recorded in the minutes of the appropriate Council meeting

Yes

 

S5.103(3) Local Government Act 1995, Administration Regulation 34B

Has the CEO kept a register of all notifiable gifts received by Council members and employees

Yes

 

 

Miscellaneous Provisions

 

S9.4 Local Government Act 1995

Has each person who received an unfavourable decision from Council, or from an employee of the local government exercising delegated authority, (that is appealable under Part 9 of the Act) been informed of his or her right to object and appeal against the decision

Yes

Templates for notice of decisions have been established in the City’s technology systems and information relating to the appeal rights is included in the templates

S9.29(2)(b) Local Government Act 1995

On all occasions, were those employees who represented the local government in court proceedings, appointed in writing by the CEO

Yes

 

S9.6(5) Local Government Act 1995

Did the local government ensure that the person who made the objection was given notice in writing of how it has been decided to dispose of the objection and the reasons why

NA

 

 

Tenders for Providing Goods and Services

 

Local Government Functions and General Regulation 14(3)

Did all the local government’s invitations to tender include a brief description of the goods and services required and contact details for a person from whom more detailed information could be obtained about the tender

Yes

 

Local Government Functions and General Regulation 14(3)

Did all the local government’s invitations to tender include information as to where and how tenders could be submitted

Yes

 

Local Government Functions and General Regulation 14(3)

Did all the local government’s invitations to tender include the date and time after which tenders would not be accepted

Yes

 

Local Government Functions and General Regulation 14(3), (4)

Did the local government ensure information was made available to all prospective tenderers concerning detailed specifications of the goods or services required

Yes

 

Local Government Functions and General Regulation 14(3), (4)

Did the local government ensure information was made available to all prospective tenderers of the criteria for deciding which tender would be accepted

Yes

 

Local Government Functions and General Regulation 14(3), (4)

Did the local government ensure information was made available to all prospective tenderers about whether or not the local government had decided to submit a tender

Yes

 

Local Government Functions and General Regulation 14(3), (4)

Did the local government ensure information was made available to all prospective tenderers on whether or not tenders were allowed to be submitted by facsimile or other electronic means and if so, how tenders were to be submitted

Yes

 

Local Government Functions and General Regulation 14(3), (4)

Did the local government ensure all prospective tenderers had any other information that should be disclosed to those interested in submitting a tender

Yes

 

Local Government Functions and General Regulation 14(5)

If the local government sought to vary the information supplied to tenderers, was every reasonable step taken to give each person who sought copies of the tender documents or each acceptable tenderer, notice of the variation             

Yes

 

Local Government Functions and General Regulation 16(1)

Did the local government ensure that tenders submitted, (including tenders submitted by facsimile or other electronic means) were held in safe custody      

Yes

 

Local Government Functions and General Regulation 16(1)

Did the local government ensure that tenders submitted, (including tenders submitted by facsimile or other electronic means) remained confidential

Yes

 

Local Government Functions and General Regulation 16(2), (3)(a)

Did the local government ensure all tenders received were not opened, examined or assessed until after the time nominated for closure of tenders

Yes

 

Local Government Functions and General Regulation 16(2), (3)(a)

Did the local government ensure all tenders received were opened by one or more employees of the local government or a person authorised by the CEO

Yes

It is standard practice for tender openings to be held in publicly accessible places and attended by the Contracts and Tendering Officer in company with other City employees relevant to the tender being opened

Local Government Functions and General Regulation 16(3)(b)

Did the local government ensure members of the public were not excluded when tenders were opened

Yes

Refer comment above

Local Government Functions and General Regulation 16(3)(c)

Did the local government record all details of the tender (except the consideration sought) in the tender register immediately after opening

Yes

 

Local Government Functions and General Regulation 17(2), (3)

Does the local government’s Tender Register include (for each invitation to tender) a brief description of the goods or services required

Yes

 

Local Government Functions and General Regulation 17(2), (3)

Does the local government’s Tender Register include (for each invitation to tender) particulars of the decision made to invite tenders and if applicable the decision to seek expressions of interest under Regulation 21(1)  

Yes

 

Local Government Functions and General Regulation 17(2), (3)

Does the local government’s Tender Register include (for each invitation to tender) particulars of any notice by which expressions of interest from prospective tenderers were sought and any person who submitted an expression of interest  

NA

 

Local Government Functions and General Regulation 17(2), (3)

Does the local government’s Tender Register include (for each invitation to tender) any list of acceptable tenderers that was prepared under regulation 23(4)

NA

 

Local Government Functions and General Regulation 17(2), (3)

Does the local government’s Tender Register include (for each invitation to tender) a copy of the notice of invitation to tender

 

Yes

 

Local Government Functions and General Regulation 17(2), (3)

Does the local government’s Tender Register include (for each invitation to tender) the name of each tenderer whose tender was opened             

Yes

 

Local Government Functions and General Regulation 17(2), (3)

Does the local government’s Tender Register include (for each invitation to tender) the name of the successful tenderer

Yes

 

Local Government Functions and General Regulation 17(2), (3)

Does the local government’s Tender Register include (for each invitation to tender) the amount of consideration or the summary of the amount of the consideration sought in the accepted tender

Yes

 

Local Government Functions and General Regulation 21(3)

On each occasion that the local government decided to invite prospective tenderers to submit an expression of interest for the supply of goods or services, did the local government issue a Statewide public notice

NA

 

Local Government Functions and General Regulation 21(4)

Did all public notices inviting an expression of interest, include a brief description of the goods and services required     

NA

 

Local Government Functions and General Regulation 21(4)

Did all public notices inviting an expression of interest, include particulars of a person from whom more detailed information could be obtained

NA

 

Local Government Functions and General Regulation 21(4)

Did all public notices inviting an expression of interest, include information as to where and how expressions of interest could be submitted

NA

 

Local Government Functions and General Regulation 21(4)

Did all public notices inviting an expression of interest, include the date and time after which expressions of interest would not be accepted

NA

 

Local Government Functions and General Regulation 22

Following the publication of the notice inviting expressions of interest, did the local government allow a minimum of 14 days for the submission of expressions of interest

NA

 

Local Government Functions and General Regulation 24E

Where the local government gave a regional price preference in relation to a tender process, did the local government give Statewide public notice of its intention to have a regional price preference policy and include in that notice the region to which the policy is to relate (only if a policy had not been previously adopted by Council)

NA

The Council already had a Regional Price Preference Policy in place

Local Government Functions and General Regulation 24E

Where the local government gave a regional price preference in relation to a tender process, did the local government include in the notice details of where a complete copy of the proposed policy may be obtained (only if a policy had not been previously adopted by Council)

NA

 

Local Government Functions and General Regulation 24E

Where the local government gave a regional price preference in relation to a tender process, did the local government include in the notice a statement inviting submissions commenting on the proposed policy, together with a closing date of not less than 4 weeks for those submissions (only if a policy had not been previously adopted by Council)

NA

 

Local Government Functions and General Regulation 24E

Where the local government gave a regional price preference in relation to a tender process, did the local government make a copy of the proposed regional price preference policy available for public inspection in accordance with the notice (only if a policy had not been previously adopted by Council)

NA

 

Local Government Functions and General Regulation 11A(1)

Has the local government prepared and adopted a purchasing policy in relation to contracts for other persons to supply goods or services where the consideration under the contract is, or is expected to be, $100,000 or less or worth $100,000 or less

Yes

The policy was updated and adopted by Council on 25 July 2012

Local Government Functions and General Regulation 11A(3)(a)

Did the purchasing policy that was prepared and adopted make provision in respect of the form of quotations acceptable

Yes

 

Local Government Functions and General Regulation 11A(3)(b)

Did the purchasing policy that was prepared and adopted make provision in respect to the recording and retention of written information, or documents for all quotations received and all purchases made

Yes

 

 


Council

37

28 January 2015

10.2

Attachment B

External Auditor's Overview Report

 

LINDSAY DELAHAUNTY CONSULTING

Report on the City of Busselton Compliance Audit Return 2013

Introduction

The period of this return is from 1st January 2013 to 31st December 2013. Questions are compiled and distributed by the Department of Local Government and Communities as part of a self-assessment process on compliance with the various legislative processes prescribed under the Local Government Act 1995 and the Local Government Regulations during a given calendar year.

The questions listed in the Compliance Audit Return have been responded to by designated council staff members responsible for the action required to comply with the appropriate legislation.

Brief

The audit is required to review the responses supplied by the staff and any supporting documentation, to ensure that action taken complies with the legislative requirements.

General comments on the return

The responses supplied in the draft return were found to be accurate, demonstrating correct interpretation of the legislation, and appropriate records maintained. Supporting registers and documentation were found to be of a high standard and recorded the required information.

The writer of the report was suitably impressed with the enthusiasm and knowledge displayed by the staff interviewed and the high standard of records inspected.

It cannot be expected that on every occasion full compliance will be achieved, as there will at times be oversights and misinterpretation which will lead to noncompliance. One of the purposes of this test is to identify such issues and afford the staff the opportunity to learn and understand the compliance requirements and the reasons for the legislative provisions being prescribed.

The return supplied by the Department of Local Government and Communities for 2013 was a repeat of the same areas prescribed in 2012 and covered the following areas:-

·    Commercial Enterprises by Local Government;

·    Delegation of Power/Duty;

·    Disclosure of Interest;

·    Disposal of Property;

·    Elections;

·    Finance;

·    Local Government Employees;

·    Official Conduct;

·    Tenders for Providing Goods and Services.

The audit was carried out on site on Thursday 20th February 2014 with some preliminary work and this report undertaken on-line both before and after this date. All supporting documentation was made available during the site visit and where necessary, staff interviewed to clarify any matters raised in the draft return. All documentation was found to be of a high standard and explanations received resolved any issues raised. Details of the areas covered by the audit are elaborated on in the following information.

Commercial Enterprises by Local Government

As there were no major Trading Undertaking or Land Transaction considered by the Council during the 2013 year, there was no need for a response to the five questions asked in this category.

Delegation of Power and Duty

All delegations undertaken by the Council to committees and the CEO were delegated in accordance with the provisions of the Local Government Act and reviewed by the Council at its meeting held on the 26th June 2013. These delegations were correctly recorded in a specific register and written advice given to the recipients.

The CEO did “on delegate” some decisions made to other senior staff, which were advised in writing and recorded in the register maintained in accordance with the Act.

When decision making was activated on the Council’s behalf by any of the recipients, that information was duly reported to the Council for the purpose of public record.

Disclosure of Interest

During the year under review there was only one financial and one impartiality interest declared by council members. On both these occasions the correct format for disclosure was undertaken and recorded accordingly in the Council minutes and register.

All members and designated staff have filed their annual returns within the prescribed time period, signifying their ongoing or new interests for the period under review. These returns have been filed in a register and were viewed during the audit. These records are appropriately made available for public viewing on demand.

Primary returns were also received from one Member elected during the term and five staff commencing employment. These have also been filed and are available for public viewing.

Having viewed the register of interest it is apparent there is a clear understanding of the legislative requirements in this area by both members and staff.

In accordance with section 5.103 of the Act and regulation 34b the CEO has maintained a register of all gifts received by members and staff. There is evidence of a clear and diligent compliance in this area primarily brought about by the growing number of events promoted and sponsored by the City.

Disposal of Property

The only instance covered under this area was the completion of a lease of the Old Fire Station advertised in 2012 with the results of the community consultation referred to the Council on the 16th January 2013.

Elections

An election gift register was established by the CEO for the October 2013 election, however no disclosures were received.

Finance

The Council established an audit committee in accordance with the Act and delegated powers under Part 7 at its meeting held 26th June 2013 (C1306/168).

The Council appointed auditors 2256398 & 308235 to be its approved registered company auditors for the period. The Auditors were appointed by an absolute majority at its meeting held 9th October 2013 (C1310/265).

The annual audit report was received by the Council on 3rd October 2013 with no major issues being listed for action. The council staff responsible for maintaining the council records in the finance area should be commended for their accurate work and a further trouble free year.

The agreement struck with the auditor including the scope and an established plan as per the Council resolution dated 4th November 2013 and adhered to during the period.

Local Government Employees

The only compliance requirement in this area was for the CEO to notify the Council of employment or renewal of contract of designated staff, declared in accordance with section 5.37(2) of the Act. This was complied with when the CEO notified the Council at its meeting held 27th November 2013, of the contract renewals for the following senior staff:-

·    Matthew Smith – Director of Finance and Corporate Services – C1311/308

·    Naomi Searle – Director of Community and Commercial Services – C1311/309

·    Oliver Darby – Director of Engineering and Works Services - C1311/309

 

 

Official Conduct

In accordance with section 5.120 of the Act, the Director of Finance and Corporate Services was appointed Official Complaints Officer. Fortunately he was not required to act in this capacity, as there was no official complaint received during the period under review.

The auditor was able to view the Complaints Register to ensure that it was correctly maintained.

Tenders for Providing Goods and Services

During the period under review there were a number of occasions where the Council was required to call tenders for the providing of goods and services. On all occasions State wide public notice was given and correct procedures followed as laid down in section 3.57 of the Act and the Functions and General Regulations.

Unfortunately on one occasion a tender period expired and was not readvertised for renewal as required under the Act. This involved a period of payments to the expired contractor for 13 months being made after the contract had expired, involving a total expenditure of just under $1.5 million in transactions. The error was discovered and corrected by calling new tenders in December 2013.

The instance was investigated during the audit and comments sought from the responsible Director. Information received indicated the error had occurred due to a human oversight with no evidence of any malpractice. The matter has now been rectified by calling for a new tender and a contract awarded accordingly. It is interesting to note that the new successful tenderer is the same company as previous. It is also worth noting that the transactions which took place during the contravention period were done at no additional cost to the Council, and except for the risk of the human error happening again, there is no identifiable monetary cost to the Council from this oversight.

It is recommended that the Director of Finance and Corporate Services be requested to implement a suitable call up system on all contracts awarded which notifies the responsible staff that a particular contract is about to expire. This will ensure that contract payments do not overrun their term, and renewal procedures are put in place to renew the expired contract. 

The Tender Register was viewed during the audit and found to be well maintained in accordance with the Act provisions and the appropriate regulations.

The Council does have a Regional Pricing Policy adopted by the Council in 2010 - C1012/415 and was complied with during the period under review.

 

 

Conclusion

During the course of the audit I reviewed various registers and supporting documentation which demonstrated to my satisfaction correct interpretation exists of the various provisions laid down by the Local Government Act and Regulations affecting compliance by a Local Government. All of the Council’s records viewed during the audit have been well maintained and found to be accurate.

 

 

Lindsay Delahaunty FLGMA; FAIM

 

 


Council

51

28 January 2015

10.2

Attachment c

Compliance Audit Return - External Audit

 


 


 


 


 


 


 


 


 

 


Council                                                                                      51                                                                28 January 2015

11.             Planning and Development Services Report

11.1           TRANSPORTABLE DWELLINGS AND CONTROLS

SUBJECT INDEX:

Town Planning Schemes & Amendments

STRATEGIC OBJECTIVE:

A City of shared, vibrant and well planned places that provide for diverse activity and strengthen our social connections.

BUSINESS UNIT:

Development Services and Policy

ACTIVITY UNIT:

Statutory Planning

REPORTING OFFICER:

Manager, Development Services - Anthony Rowe

AUTHORISING OFFICER:

Director, Planning and Development Services - Paul Needham

VOTING REQUIREMENT:

Simple Majority

ATTACHMENTS:

Attachment a   Transportable Homes Examples  

  

 

PRÉCIS

 

At its ordinary meeting held on 25 June 2014, Council resolved:

 

That the Council requests the CEO to investigate and report to Council by the end of 2014 on possible legislative changes that could enable the City of Busselton to place controls on relocated dwellings in Port Geographe through the inclusion of provisions in the town planning scheme, or otherwise.

 

This report is presented in response to the resolution and has investigated the current statutory framework and recommends changes. It should be noted that a report had been prepared for inclusion on the Council’s December 2014 meeting agenda, but was deferred to allow further consultation with the Port Geographe Landowners’ Association, as well as following notification of Councillors that the report was to be deferred by one month.

 

This report finds that an amendment is required to the Local Planning Scheme, to introduce a new definition and controls, to ensure future transportable homes or prefabricated homes will be consistent with the character of the locality.

 

This report has also examined the consistency of construction controls within the Port Geographe Village Centre Policy as identified in Local Planning Policy 4 – Urban Centres Policy.  It has identified that there is an inconsistent application of construction controls in the Village Centre and that a uniform approach should apply to all residential development in the Village Centre.

 

The Report also has identified that market conditions, the likely outcomes of the undeveloped area, and the experiences of development occurring in the Port Geographe Area, warrant a comprehensive review of the development control policy affecting that area. It should be noted that this report does not focus solely on the Port Geographe development area, but takes a broader view and considers the issues from the perspective of the City as a whole, but with a particular focus on Port Geographe.

 

 

BACKGROUND

 

In response to community concern regarding the control of transportable buildings throughout the City, the current planning framework has been reviewed and amendments are recommended.

 

The City’s town planning scheme District Town Planning Scheme 20 was replaced by City of Busselton Local Planning Scheme 21, adopting the State’s Model Scheme Text. 

 

Scheme No. 20 at cl.51 had a control on transportable homes, that made such development subject to the requirement to obtain planning approval, even if setback and other requirements of the scheme were met such that, had the house not been ‘transportable’, planning approval would not have been required.

 

Clause 51 ‘Transportable Homes’ of TPS 20 was as follows:

 

51. TRANSPORTABLE HOMES

 

A person shall not erect or place a relocated, transportable or prefabricated home on a lot without the consent of Council, which will only be granted where the design of the building is to the satisfaction of the Council and, in its opinion, does not adversely affect the amenity of other properties in the vicinity.

 

The opinion of Council referred in cl. 51 was to be guided, and limited by broad planning principles, in determining whether a transportable home would not adversely affect the amenity of other properties in the vicinity, and any judgment would be subject to review by the State Administrative Tribunal.

 

The City also had a Local Planning Policy that complemented cl 51, but it was revoked on 29 September 2012. 

 

The Local Planning Policy outlined the assessment process and detailed conditions of planning consent including; the underside of the building to be fully enclosed, exterior claddings, walls and roof to be brought up as a ‘new’ standard, all specified remedial works to be completed within 12 weeks of the relocated building being placed on site, the removal of asbestos and a bank guarantee to be lodged with the City. The Policy was revoked because several elements were contrary to over-arching legislation (for instance, the requirement for removal of asbestos) and bonds and bank guarantees are, in most instances, unsupportable and ineffective measures in relation to this kind of development.

 

The State’s Model Scheme Text (MST) does not provide for control of transportable dwellings and as such this control was not carried into Scheme 21.

 

The State’s MST reflects an evolution of the WA planning system that has been ongoing and continues in the direction of greater consistency across local government boundaries, and simplicity and certainty through the planning process.  This is implemented through the MST and, in particular, through the Residential Design Codes (R-Codes), which are intended to apply to residential development through the State in a consistent fashion. The State has recently announced further planned reforms that, if implemented in final form, would be a further and significant move in the direction of standardization and consistency of planning controls throughout the State and across local government boundaries.

 

For various reasons, including affordability and in promoting innovation, the R-Codes does not control external materials or matters of architectural merit, other than at a very rudimentary level. The Western Australian planning system is quite different to some other systems in this respect, and there has been a general reluctance to seek to control what are often seen as being subjective matters, such as architectural style, merit or quality. There are seen to be certain cultural values that underpin that approach, including a fairly widespread view that, with certain limitations, are well expressed in the cliché, suitably updated to be gender neutral, that ‘a man’s home is his castle’.

 

The term transportable homes can potentially cover a wide range of types, ranging from re-used shipping containers, dongas, through to buildings of grand proportions.  Examples are provided in Attachment A.  These examples highlight the dilemma of transportable homes policy; in balancing the amount of prefabrication with the achievement of architectural merit. 

 

Brick construction has traditionally been seen by some in the community as a measure of quality with a fear that use of lightweight materials and/or prefabrication leads to poor quality and poor architectural merit.  This is not necessarily the case and new construction technology is leading to prefabricated elements that will increasingly be integral to achieving high architectural merit, affordability and energy efficiency.

 

Only two applications subject to cl. 51 had been received during the period of 2009-2014 prior to its removal from LPS 21.

 

STATUTORY ENVIRONMENT

 

Planning and Development (Local Planning Schemes) Regulations 2014

 

The Minister announced on 17 November 2014 the draft Planning and Development (Local Planning Schemes) Regulations 2014 for consultation; closing on 30 January 2015. 

 

The Regulations indicate that the State will introduce Deemed provisions (imposed) that will exempt single dwellings/houses and outbuilding development from requiring planning approval, if it complies with the R-Codes. 

 

The Regulations also provide that Local Planning Policy prepared by a council will be referred to the WAPC for assurance of consistency with State planning policy and Deemed provisions.

 

The Regulations also clarify that the City does not have a role in enforcing covenants under the Act and that the Planning Scheme, and any deemed provision, will prevail where a covenant is contrary to it.

 

The Minister also announced an intention to introduce ‘Quick Start’, enabling builders to obtain private verification with R codes and private certification of Building Rules compliance (certificate of design compliance) to enable construction to commence without local government approval.  The local government would effectively issue the building permit retrospectively.

 

A separate briefing on the draft Regulations will be provided to the Council after comprehensive review by City officers.

 

Local Planning Scheme No. 21

 

A transportable home (in the absence of any specific controls relating to transportable homes) falls into the land use category of a ‘single house’, which is permitted development in most zones .

 

As permitted development, the City is obligated not to advertise a proposal other than by the consultation process in the R-Codes and only for specific aspects of variation on the R-Codes.

 

Clause 5.4 of Scheme 21 (following the MST) provides that the City will not have regard for provisions provided in a restrictive covenant, but will instead only be by guided by the planning framework.

 

Building Act 2011

 

The Building Act 2011 adopts the Building Code of Australia control of structural and building requirements.  A Building Permit is required before construction can commence.  The default timeframe for a Building Permit, time to complete a building, is two years, although shorter or longer periods can be specified.  An applicant can apply to extend a permit to complete a building.

 

The Building Act 2011 essentially only addresses the structural adequacy of the outcome, it makes no distinction between new or second hand material or the degree of prefabrication, or indeed any other consideration relating to style, taste or architectural merit.

 

The Building Act 2011 also provides Private Certification, the City is compelled to issue a Building Permit within 10 days of receiving a privately certified application(certificate of design compliance). 

 

The Building Act 2011 makes a requirement for a Demolition Permit, but with regard to a relocated building there is no authority to deny the Permit on the basis of a concern regarding its destination.

 

Health (Asbestos) Regulations 1992

 

The transporting and handling of asbestos is addressed in the Health Asbestos Regulations 1992.

 

The Health (Asbestos) Regulation 1992 provides Regulation 7A that it is not an offence to move a house built wholly or partly with asbestos cement if the house is not divided into more than 3 sections.

 

If a building is to be broken into more than three parts approval of the State Health Department is required.

 

RELEVANT PLANS AND POLICIES

 

Local Planning Scheme 21 enables the City to create Local Planning Policy to provide guidance on development requirements.  Local Planning Policy cannot contradict the Scheme and the Scheme can’t contradict State policy (including the R-Codes), unless approved by the Minister.

 

Local Planning Scheme 21 also identifies and/or provides a head of power for a number of ‘special character areas’, development guide plans, detailed areas plans and building design guidelines that apply to specific precincts or portions of land across the City that specify design criteria that is different to the R-Codes.

 

This includes at Port Geographe the Village Centre Precinct Plan (contained in the City’s Local Planning Policy 4: Urban Centres Policy).

 

FINANCIAL IMPLICATIONS

 

The recommendations will increase the number of applications requiring planning consent, but is expected to be accommodated within existing staffing capacity. 

 

STRATEGIC COMMUNITY OBJECTIVES

 

The recommendation of this report reflects Community Objective 2.2 of the Strategic Community Plan 2013, which is; “A City of shared, vibrant and well planned places that provide for diverse activity and strengthen our social connections.”

 

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 identified ‘downside’ risks only, rather than upside risks as well. The implementation of the Officer Recommendation will involve initiating the proposed scheme amendment and referring it to the Environmental Protection Authority, and amending Local Planning Policy 4. In this regard, there are no significant risks identified. 

CONSULTATION

 

Amendments to the planning scheme require consideration by the Western Australian Planning Commission (WAPC), whose decision-making would either be guided by advice provided by officers of the State Department of Planning or, in some cases, Department officers would exercise the powers of the Commission, acting delegated authority. A preliminary discussion with the Department of Planning indicated that the control of transportable homes is a local planning matter.  The Department will reserve its opinion subject to City investigations and the detail of any proposals.

 

It is important to note, though, that the State Government has recently released draft Regulations (see ‘Statutory Environment’ above) that would, if adopted unchanged in final form, mean that any additional controls on transportable, relocated or similar homes in the City’s local planning scheme would be overridden and redundant, and if a transportable or relocated home met the deemed to comply provisions of the R-Codes would not require planning approval.

 

Given the above, it is seen as appropriate that the City both consider making a submission expressing concerns about the aspect of the draft Regulations described above, and also refer the proposed town planning scheme amendment to the WAPC for consent to advertise, ensuring that the issue is considered by the WAPC at the earliest possible stage.

 

Officers have also consulted informally with the Port Geographe Landowners’ Association in the development of the proposals set out in this report. The Association’s views are discussed in the Officer Comment section of this report. It should be noted, though, that the Association is of the view that further and tighter controls should be applied within the Port Geographe development area.

 

Should Council resolve to proceed with any amendment it will also need to be subject to public consultation (invited for no less than 42 days).  Any submissions received will be considered by a further report to Council prior to final adoption of the Scheme Amendment and forwarding for the WAPC’s final consideration and the consideration of the Minister for Planning.

 

Should Council resolve to proceed with an amendment to Local Planning Policy 4: Urban Centres Policy, the revised policy will require public consultation for not less than 21 days.  Any submissions received will be considered by a further report to Council prior to final adoption and publication of a notice, to give it effect.

 

OFFICER COMMENT

 

Transportable homes - discussion

 

Case law

 

As part of the investigation into the control of transportable homes (for the purpose of this report, that term is being used to describe a relocated, transportable or prefabricated home) the City has reviewed the relevant case law and SAT decisions.  Many local governments have their own definitions that approximate for transportable homes.  In this summary of case law, and throughout this report, transportable homes has been used as a term to capture the various definitions.

 

It is clear has been a consistent feature of the Court decisions that even where a local government has a specified control on transportable homes, the nature of the land use has nonetheless been determined as a single house/dwelling.  The definition of a transportable home, or similar, is instead to be applied as a building standard/development requirement, but is not applied as a determination of land use. 

 

The courts have found that whilst a transportable home may be a single house/dwelling as the land use, it is not automatically a Permitted use, not requiring planning approval.  The Courts have recognised Schemes can establish exemptions for a single house/dwellings not to be permitted and subject to a planning assessment (PENFOLD and SHIRE OF EXMOUTH [2012] WASAT 171).

 

This is important because it means the advertising requirements for a single house would apply and further even if attempting to prohibit transportable home (effectively removing the opportunity to appeal), the Courts can reasonably be expected to accept the appeal as a single dwelling.

 

The approach of the courts and tribunals has been to accept that a building requirement is appropriate to apply to transportable dwellings, but whilst that is the case, it is not to be used to discriminate against transportable dwellings as a class or to make disproportionate demands.  This would present difficulty for imposing bonds to ensure construction completion, as per the previous City policy.  The Courts’ view would appear that a fear of failure to complete and meet the terms of a planning consent would apply equally to all development, and therefore could not be validly applied to a transportable building as some kind of additional requirement.

 

The Courts have not supported specified construction materials, even when listed in a local planning scheme, instead favoring the merit of a proposal in satisfying the purpose of the zone.  In WILLIS and SHIRE OF DARDANUP [2009] WASAT 213, for instance notwithstanding an explicit requirement in the scheme for brick construction in a landscape zone, the court accepted that a ‘timber panel’ construction was consistent with the purpose of the zone.

 

Definitions used elsewhere

 

TPS 20 did not have a separate definition for ‘Transportable Homes’ but instead relied on the description provided in Clause 51 that erecting, or placing a relocated, transportable or prefabricated home required the consent of the City. 

 

There were difficulties with the arrangement namely, guidance upon the planning considerations was required rather than being left open as “in its opinion” may suggest, and it was unclear whether it applied if the outcome (final appearance) was substantially different from the original building.

 

As a general planning practice, and MST structure, definitions are found in Schedule 1 of the Scheme with the respective development requirements (assessment considerations) located in Part 5 of the Scheme.

 

A review of other local planning schemes has been undertaken to identify an appropriate definition.  It was noted from the review that metropolitan local governments generally do not have any additional control and those local governments retaining controls generally have older local planning schemes.

 

The following definitions were found

 

·    Dwelling – Transportable :

“means a structure designed for ease of transporting from one location to another, and includes structures such as ‘Donga’ units with skid mountings, metal sandwich panel and flat roof design, and other proprietary names like ‘durabuilt’, ‘atco’ and the like”

 

·    Prefabricated building:

“means a building or section of a building which is manufactured in advance, either in whole or in sections that can be easily transported and assembled”.

 

 

·    Relocated Dwellings:

“Means a dwelling which has been previously constructed on a building site whether within the district or elsewhere and whether occupied or not, but does not include a prefabricated home or purpose built transportable home”.

 

·    Second Hand Dwelling:

“Means any building or structure or part thereof used or intended to be used for human habitation and which does not consist of substantially all new material and may be transported or moved to a site for the purpose of re-erection”.

 

Character control and the R - Codes

 

There is a conservative assumption about how all new residential development will appear even allowing for reasonable bounds of self-expression.  There is therefore a reliance upon a mutual obligation, that all properties contribute to amenity and benefit one another, and this protects investment and persuades design choices that result in a conservative and similar building form, This assumption however cannot always be relied upon, warranting in some instances control to avoid the extremes, some people are just too eccentric, or to achieve a particular character the market would not otherwise provide.

 

In the R-Codes a consistent amenity is created by the relationship between landscape and built form.  The R-Codes offers control of this through quantifiable provisions deemed to comply but which only address quantitative/objective matters such as street setback, garage width, lot boundary setback and maximum building height.  In reality the R -Codes also relies heavily upon the mutual obligation to achieve amenity, and it works better in greenfields situations, where the latest fashion is generally pursued, than it does in infill situations, where the latest fashion is often inconsistent with an established and cherished building form and rhythm to the built form that can be observed.

 

Character and visual amenity is much greater than street setback, garage width, lot boundary setback and maximum building height.  There are numerous examples of ‘contrasting’ development throughout the City that reflect this and it is more noticeable in an urban area where buildings are in close proximity to one another and provide a point of reference, than in the rural area, where the next building may not be readily in view.

 

The public realm also plays an important role in determining the character of an area and includes road width, and street verge treatments (furniture and landscaping).  It works together with the private property to the extent that it is visible from the public realm to create the perceived character. 

 

Factors that contribute to a consistent character include the relationship of the following elements in their relation from one property to another -

a)      building height (minimum and maximum), mass and proportion;

b)     roof form, eaves height, and pitch;

c)      façade articulation/detailing/textures colours and decorative elements

d)     verandahs, eaves, and parapets; and

e)     landscaping and space for it.

 

The mutual obligation and the market usually work to produce a sameness with regard to items (a) to (e).  Successful contrasts and innovations generally also incorporate and retain these elements from the locality.

 

Transportable buildings potential cover wide range of scale and shape from indistinguishable to potentially confronting.  A shipping container or a donga for instance would typically and easily fail to find consistency in its locality with items (a) to (d), but could easily be sited within a lot to meet the R-Codes.

 

Locations

 

As discussed earlier, the perception of character and the importance of individual building design is more acute within residential areas because of the close proximity of other buildings as a point of reference.  Also, as discussed earlier single house/dwellings are permitted / exempt if R-Code compliant and if not otherwise called in by the Scheme.

 

It is therefore desirable to have a control of transportable homes to ensure consistency with the purpose of the Residential Zone and Rural Residential Zone.

 

Single houses, as a land use, currently require planning approval in Special Character Areas, Conservation Zone, Rural Landscape Zone, or Bushland Protection Zone.  As such all single houses including those that may be transportable homes are subject to planning approval and consistency with the objectives and principles that apply to the Zone.  These considerations would apply equally to an in-situ construction as it would to a prefabricated one.

 

The Agriculture Zone, and Viticulture and Tourism Zone both have in their objective “to discourage ribbon development along Caves Road and other tourist roads and maintain the rural and natural ambience of transport corridors generally”

 

Outside the residential zones, the Scheme provides (at cl.5.35) a minimum front setback of 30m in rural areas (Agriculture, Viticulture and Tourism Zones) and 100m minimum setback from Caves Road and along transport routes (Main Roads WA).  Any development within these setbacks, single dwelling (including transportable) would be subject to planning approval.

 

It could be argued that the compliance with the setbacks at cl.5.35 satisfies this purpose and there is also sufficient distance for landscaping in this regard, to assist amenity.  Any application closer than the minimum setback is subject to planning approval and would be compared to maintaining the natural ambiance.  Alternatively the setback distances only refer to certain roads not a general character (perceived from neighbors), and in perspective the distances of 30m and 100m in open areas are modest, meaning a development could be readily noticeable.

 

Advertising transportable homes

 

The Scheme structure, as was the case with Scheme 20 distinguishes between land uses in Part 4 and general development requirements in Part 5.  This is important because the Zoning table and the requirement for advertising an application is generally based upon the land use, and the Courts have consistently determined that a transportable building is a single house as a land use, that the transportable home would fall into a development requirement.

 

Under both the previous and current Scheme if a proposal reasonably falls within a listed class the City must follow the requirement for advertising.  A single house /dwelling is a permitted/excluded form of development from the Scheme and subject to consultation as provided by the R Code.  The exception is if the Scheme otherwise requires planning approval.

 

In short as the Scheme stands, as a transportable home is a single house (as a land use) and the City does not have a valid basis to undertake consultation should an application be received in a Residential Zone.

 

In regard to advertising, it is established by the Courts, as an intent of the Planning and Development Act 2005 that the purpose of advertising is only to illuminate matters of planning consideration, it is not a democratic purpose (or a ‘popularity contest’ of some kind), and it is not intended to distract the decision maker from making an objective assessment.

 

Transportable homes -proposed scheme amendment

 

In consideration of the above it is recommend that the Scheme be amended to include a new definition for transportable homes, and that such development should require planning approval throughout the City, be assessed against development standards to be provided in Part 5, as well as introducing a clear ability to consult with the community as part of the decision-making process.

 

The steps to effect this will require:

1.      An appropriate definition;

2.      Exception to the normal exemption from the need to obtain approval for development of single houses and some other kinds of development that complies with the R-Codes and other, quantitative/objective development standards;

3.      A development standard that sets out the key considerations/criteria, which would be matters of discretionary judgment, against which applications for planning approval would be assessed; and

4.      A specific power to allow consultation.

 

The following is proposed as an appropriate definition -

Pre-fabricated building: Means a building, including a dwelling, in whole or part manufactured in advance or previously erected on another site, and which is transported to the site, either in whole or in sections.  This includes purpose designed transportable buildings, modular buildings, relocated buildings, buildings that are or incorporate shipping containers, and buildings in whole or part constructed using elements of decommissioned vehicles, including railway carriages, park homes, caravans or motor vehicles. This does not include outbuildings constructed on site using prefabricated steel or other metal structural elements.

 

Point 2 above is proposed to be addressed by insertion of the following as sub-clause 9.2.1 (b) (xii) into the scheme –

 

The development consists, in whole or part, of a pre-fabricated building.

 

Points 3 and 4 are proposed to be addressed by the insertion of the following as a new clause 5.9, with subsequent clauses being renumbered accordingly -

 

PRE-FABRICATED BUILDINGS

 

The local government shall not grant planning approval for development of a pre-fabricated building unless it is satisfied that the development will be consistent with the character of the locality in which development is proposed, the maintenance of the amenity of the locality in which development is proposed and the objectives, policies and other provisions of the Scheme which apply to the land where development is proposed. The local government may, if it considers it appropriate to do so, advertise an application for development of a pre-fabricated building pursuant to clause 10.4 of the Scheme.

 

 

Port Geographe

 

Port Geographe for the purpose of this report is identified as the Sprecified Area Rate area encompassing both canal and dry land lots.

 

Initially this area was created as a separate Scheme (Scheme 18) and later amalgamated into Scheme 20 in 1999.  Since then, other than review of the tourist lots, there has been no comprehensive review of the development control affecting Port Geographe.

 

Over this time the City has observed outcomes that were not expected, controls assumed that do not exist, and in the commercial areas a discord with market viability, and potential resolution on the undeveloped portion, but possibly requiring a new configuration of the planned urban form.

 

Covenants

 

Any landowner who enters into a restrictive covenant agreement if it is perpetual, has an obligation to abide by the agreement/covenant.  The enforcement of a covenant, unless in favour of the City, is usually in favour of adjoining landowners; meaning they can bring action in the Supreme Court against any breach of the covenant. 

 

The City has investigated the extent of the covenants applied in Port Geographe.  From this research most allotments within Port Geopgraphe are subject to covenants on their titles that are perpetual and determine the construction materials.  There is however an exception being the residential allotments on the northern side of Spinnaker Boulevard – where there are covenants, but they are not perpetual in nature, expired several years ago and were, in any case, poorly and ambiguously drafted in the opinion of City officers.

 

There is therefore, in most of the Port Geographe development area, a mechanism by which the subsequent beneficiaries of the original estate can enforce them against one another through the Supreme Court, but this does not apply to lots on the northern side of Spinnaker Boulevard.

 

Covenants are potentially more effective at applying construction standards that are unique to an area, that were the motivation for their owners’ and their neighbors’ purchases.  They are reflected on the title and are effectively a contract that one buys into.  The difficulty with Covenants is they can be inconsistent with Planning legislation, in fact the City cannot validly have regard to them in making a planning decision, and this means a neighbor may only be alert to a breach of the covenant after construction has commenced.  Once this occurs it is expensive to correct.  The other difficulty is the time and expense to take an action to the Court.  The City has investigated whether there are any guidelines or templates available that would make the pursuit of a covenant more certain, accessible and cost effective for the community.  The City has not found any and each action appears to start from afresh, which is not efficient and expensive.

 

Ideally and to the extent that it can the planning framework should be consistent with the covenants where it is a conscious intent within large estates.

 

Planning Framework Applying to Port Geographe

 

Port Geographe is identified as a Special Control Area in Scheme 21.

 

It refers to development being guided by

 

·    The Port Geographe Development Plan

·    The Port Geographe Landscape Plan (non-existent)

·    The Port Geographe Village Centre Precinct Plan

The Scheme in addition provides control regarding canal lots and the canal edge and features to be retained in any modifications to the Port Geographe Development Plan, the Port Geographe Landscape Plan and the Port Geographe Village Centre Precinct Plan

 

The Port Geographe Development Plan

 

The Port Geographe Development Plan provides the spatial arrangement and allocation of land uses within the Port Geographe area, it is the Specified Area Rate area.  It allocates the road arrangement, waterways, public open space, residential areas and density and the commercial and tourist accommodation areas.

 

The Port Geographe Village Centre Precinct Plan

 

The Port Geographe Village Centre Precinct Plan is a local planning policy and it can be amended relatively quickly.  It was last updated in 2008.

 

At present the Precinct Plan covers the area bound by the coast, Layman Road and to the extent of the canal that adjoins the road Keel Retreat and where it intersects with Layman Road and the coast.

 

The policy provides development principles for identified areas that include the Village Centre core, grouped dwelling areas, tourist accommodation, resort village, boat launching and marina, core residential and non-core residential.

 

Many aspects of the policy are now obsolete, including example building floor arrangements.  It also includes architectural principle and building design provisions many of which are too broad or contradictory to provide any effective guidance, for instance -

 

“A common palette is to be used throughout the Village Centre precinct which will permit variety, and allow developments to have an individual identity while providing cohesion between buildings.”

 

Within the Port Geographe Village Centre Precinct Plan, the “core residential” policies reflect the provisions that are found in the covenants within the port Geographe area.  Conversely the Non-Core Residential Development area which includes land north of Spinnaker Boulevard and Keel Retreat relies only upon the R-Codes -

 

“4.8.3 Non-Core Residential Development

For Village Centre residential lots outside the Village Centre Core, development is only subject to the provisions of the Residential Design Codes and the Shire’s Planning Scheme.”

 

There is a real risk that the intended residential amenity and character for the Village Centre, because of the situation on some lots on Spinnaker Boulevard, may not be achieved.  Whilst other areas do enjoy the benefit of the covenant, these lots do not.

 

The proposed controls on development of pre-fabricated buildings would apply to the land at Spinnaker Boulevard and would be of assistance, however, this control is still twelve months away, if successful in obtaining the Minister’s approval, and relying on the character controls provided by the R-Codes is short of the covenant and the community expectation.

 

The Scheme provides an opportunity to capture single houses to require planning approval, instead of being routinely permitted, if explicitly required by a Local Planning Policy.

 

The exemptions provided for single house as permitted development includes at cl.9.2(b)(ix) the following exception -

 

(ix) the development is inconsistent with any provision of an adopted Local Planning Policy.

 

For the reason that it is consistent with the original intent, as identified on the titles, it is recommended the City’s Local Planning Policy 4: Urban Centres Policy, be amended to -

·      explicitly make single houses in the whole of the Village Centre be subject to planning approval;

·      apply the current Core Residential policy to all the residential areas in the Village Centre, with the addition of specific reference added for fencing materials;

·      update the references in the policy to Scheme 21; and

·      clarify upper level material requirements.

 

The specific changes proposed are as follows -

·      Replace at cl 4 the words “8.  Core Residential” with the word “8.  Residential”;

·      Replace the residential areas now separately identified as “Core Residential” and “Non -Core Residential” on the Plan , with a combined “Residential” area notated by an “8”;

·      Replace the words “Core Residential” in the Plan legend with the word “Residential”;

·      Replace cl 4.8 heading “Core Residential” with “Residential”; and

·      Delete the whole of 4.8 and replace with:

In order to establish a distinct architectural hierarchy to the Village Centre Precinct, all residential development within the area of the Village Centre Precinct Map requires planning approval, pursuant to cl.9.2(b)(ix).

In principle, residential development should conform with the following;

(a)       The Residential Design Codes of Western Australia (R-Codes) are applicable, including the granting of discretion where warranted to meet the objectives for the Village Centre.

(b)       Ground floor walls should be of masonry construction.

(c)        Upper level walls should be of masonry construction or a rendered cement appearance with the use of lightweight (e.g. timber) cladding or feature panels or elements for up to 50% of the upper level wall surface.

(d)       Garages, carports and outbuildings should be consistent in construction and finish with the ground floor of the house.

(e)       Garages and cross overs should make up no more than 50% of the width of the frontage of the site, or 7m in width where the frontage is less than 12m in width.

(f)        Roofs should be of clay or concrete tile, or Colorbond metal with feature details in timber or fibrous cement sheet.

(g)       Roofs to garages, carports and outbuildings should be consistent in roof pitch and materials with the house.

(h)       Building heights will be subject to clause 5.8 of the City of Busselton Local Planning Scheme 21. The reference to the mean high water mark means the mean high water mark of Geographe Bay.

(i)        Uniform fencing of limestone material or similar is to be provided at the POS interface.

(j)        The underside of any decks, at ground floor level, should be enclosed.

(k)       Retaining walls, facing the canal should be terraced with no face, greater than 1.2m high between steps. Any storage lockers should not protrude above the terrace or ground level.

(l)        Side fencing should not protrude forward of the building setback from a public road.

 

If the draft Regulations discussed elsewhere in this report do come into effect in the form currently proposed, however, the effect of the policy change described above would be negated, and development that complies with the deemed to comply provisions of the R-Codes, even if it is a transportable dwelling or similar, it would not require planning approval.

 

Port Geographe Land Owners’ Association (PGLOA)

 

The proposals above have been discussed with PGLOA representatives, who have indicated that the PGLOA would like to see further and stronger controls than what officers are recommending. Specifically, the PGLOA would like to see controls in the town planning scheme that it is understood would provide for the following –

1.    An absolute prohibition on all Pre-Fabricated Buildings (it is understood that the Association is comfortable with the definition for this kind of development that is proposed by officers) in the Port Geographe development area;

2.    An absolute prohibition on all ‘Pre-Fabricated Homes’ (which is understood to be a reference to Pre-Fabricated Buildings which are dwellings, as distinct from being non-habitable buildings) on all land zoned ‘Residential’, whilst such buildings would be permissible in other zones, including the ‘Rural-Residential’ zone;

3.    A mandatory requirement for consultation before a Pre-Fabricated Building can be approved, including a specific requirement for consultation with relevant ‘ratepayer/landowner associations’.

 

Where a town planning scheme provides for an absolute prohibition on development and, in other circumstances, mandatory requirements for consultation, and those controls are properly drafted to achieve those purposes, then a decision to refuse development approval or to require consultation could not be successfully challenged in the State Administrative Tribunal, as neither the local government nor the Tribunal would have the discretion, regardless of the merits of the particular case, to either not refuse development approval or to not undertake consultation in the manner required. Controls of the kind envisaged could conceivably be drafted (other than with respect to mandatory consultation with ‘ratepayer/landowner associations’ – see more below), but are not recommended by officers for the following key reasons –

1.    It is not considered that expectations in terms of design, layout and quality of new housing are substantially different in Port Geographe than in other new development areas in the City;

2.    It is considered conceivable, even likely, that pre-fabricated buildings, including where such buildings are intended to be used as dwellings, could be consistent with the amenity and character of the Port Geographe and all other localities in the City, and there is not a sound basis to prohibit such buildings entirely – notwithstanding that there is considered to be a case for an additional layer of control, as proposed in the officer recommendation;

3.    In some cases, landowners may have purchased land with a reasonable expectation that a transportable, relocated or similar dwelling could be developed on the land, and to implement a widespread prohibition on such dwellings would be of significant potential concern to those landowners;

4.    A mandatory requirement for consultation would impose an additional regulatory burden on an applicant, even where it is clear that a proposed development will be consistent with the character and amenity of the locality; and

5.    A requirement for consultation with ‘ratepayer/landowner associations’ could not be drafted in a sufficiently legally precise manner or made workable – that does not mean that such organizations could not or should not be consulted with, just that a specific legal requirement to do so would not be workable in the manner proposed.

 

The PGLOA has also indicated that it would like the changes to planning policy proposed in relation to portion of the Village Centre applied to the whole of the Port Geographe development area – that would mean, amongst other things, that all new houses in that area would need to be of masonry construction (although this would be subject of some discretion) and would require planning approval, even if they are site built houses that meet all of the deemed to comply provisions of the R-Codes; and there is therefore clearly no basis to do anything other than issue planning approval. In the rest of the Port Geographe development area, unlike parts of Spinnaker Boulevarde, there are covenants in place which, if implemented, would enforce certain building standards. City officers are of the view that if residents of the area wish those standards to be enforced they should establish mechanisms to do so, rather than seeking to transfer that responsibility to the City and ratepayers as a whole. If the City was to accept the PGLOA’s position on this matter it is not at all clear why the City would not do the same in areas like the Provence Estate, where there are also developer-imposed covenants in place, and the overall effect of that would be to effectively delegate to developers the establishment of planning controls.

 

It is also worth noting that, whilst the Port Geographe Land Owners’ Association has a particular view with regards to regulation of building design and quality in Port Geographe, there are a wide range of views across the community. In the lead-up to the Council resolution made in June 2014 which this report seeks to address, views quite different to those then being expressed by the Association and its members were expressed by many other members of the public – and in many cases views were expressed to the effect that the City should not be acting as an arbiter of architectural style, merit or quality per se.

 

CONCLUSION

 

It is recommended, given the current market trend and increased pressure on the use of transportable buildings that the proposed amendment is initiated for referral to the WAPC and subject to their approval, advertising for public comment.

 

It is also recommended that changes be made to local planning policy as described above.

 

OPTIONS

 

In terms of the proposed scheme amendment, there is a range of options that the Council could consider, including: (1) applying the proposed additional scheme controls only to specified areas; (2) seeking to prohibit transportable or similar buildings in specified areas; (3) applying additional controls as requested by the PGLOA; or (4) advertising the amendment without first seeking consent to advertise from the WAPC. The first option is not recommended as it is seen as having significant potential for confusion and uncertainty. The second option is not recommended as it is considered that it would be disproportionate, preclude many kinds of development that may be appropriate and would have very little chance of being supported by either the WAPC or Minister for Planning. The third option is addressed under the sub-heading ‘Port Geographe Land Owners’ Association’ in the Officer Comment section of this report above. The fourth option is addressed in the ‘Officer Comment’ section of this report. The fourth option is not recommended as, whilst amendments are ordinarily advertised without first seeking consent to advertise, there is considered to be sufficient uncertainty regarding whether the WAPC will ultimately support the proposal that it would be prudent to seek consent to advertise before advertising, so that, if and when the amendment is advertised, there is a reasonable expectation of the amendment ultimately being supported by the WAPC.

 

TIMELINE FOR IMPLEMENTATION OF OFFICER RECOMMENDATION

 

Amendment to Scheme 21

 

The Officer Recommendation will be implemented through the completion of the amendment documentation and forwarding of the amendment to the WAPC for consent to advertise, following which consultation would occur and the matter further considered by the Council, WAPC and Minister for Planning at that time. It is anticipated that the matter may be able to be further considered by the Council, after consultation, by around July 2015, but that assumes a fairly rapid and positive response from the WAPC after the matter is forwarded for consent to advertise.

 

Amendment to Local Planning Policy 4: Urban Centres Policy

 

The Officer Recommendation will be implemented through the undertaking of public consultation, in accordance with cl 2.3.1, and completed by a report Council, on the assessment of submissions received.  Completion is expected by April 2015.

 

OFFICER RECOMMENDATION

 

That Council resolves –

 

1.    Pursuant to Part V of the Planning and Development Act 2005, to adopt Amendment 10 to the City of Busselton Local Planning Scheme 21 for community consultation, as follows:

 

a)         Inserting into Schedule 1 the following -

 

Pre-fabricated building: Means a building, including a dwelling, in whole or part manufactured in advance or previously erected on another site, and which is transported to the site, either in whole or in sections. This includes purpose designed transportable buildings, modular buildings, relocated buildings, buildings that are or incorporate shipping containers, and buildings in whole or part constructed using elements of decommissioned vehicles, including railway carriages, park homes, caravans or motor vehicles. This does not include outbuildings constructed on site using prefabricated steel or other metal structural elements.

 

b)        Inserting the following as sub-clause 9.2.1 (b) (xii)  –

 

The development consists, in whole or part, of a pre-fabricated building.

 

c)      Inserting as a new clause 5.9, with subsequent clauses being renumbered accordingly, of the following -

 

PRE-FABRICATED BUILDINGS

 

The local government shall not grant planning approval for development of a pre-fabricated building unless it is satisfied that the development will be consistent with the character of the locality in which development is proposed, the maintenance of the amenity of the locality in which development is proposed and the objectives, policies and other provisions of the Scheme which apply to the land where development is proposed. The local government may, if it considers it appropriate to do so, advertise an application for development of a pre-fabricated building pursuant to clause 10.4 of the Scheme.

 

2.    That Amendment be referred to the West Australian Planning Commission for consent to advertise.

 

3.    That upon consent to advertise being received from the West Australian Planning Commission, the draft Amendment be referred to the Environmental Protection Authority (EPA) as required by Part V of the Act and on receipt of a response from the EPA indicating that the draft Amendment is not subject to formal environmental assessment, be advertised for a period of 42 days, in accordance with the Town Planning Regulations 1967.

 

4.    Pursuant to clause 2.3 of the City of Busselton Local Planning Scheme 21, resolve to adopt for consultation purposes the following amendments to Local Planning Policy 4: Urban Centres Policy

a)      Replace at cl 4 the words “8.  Core Residential” with the word “8.  Residential”;

b)     Replace the residential areas now separately identified as “Core Residential” and “Non -Core Residential” on the Plan , with a combined “Residential” area notated by an “8”;

c)      Replace the words “Core Residential” in the Plan legend with the word “Residential”;

d)     Replace cl 4.8 heading “Core Residential” with “Residential”; and

e)     Delete the whole of 4.8 and replace with:

In order to establish a distinct architectural hierarchy to the Village Centre Precinct, all residential development within the area of the Village Centre Precinct Map requires planning approval, pursuant to cl.9.2(b)(ix).

In principle, residential development should conform with the following;

(a)       The Residential Design Codes of Western Australia (R-Codes) are applicable, including the granting of discretion where warranted to meet the objectives for the Village Centre.

(b)       Ground floor walls should be of masonry construction.

(c)        Upper level walls should be of masonry construction or a rendered cement appearance with the use of lightweight (e.g. timber) cladding or feature panels or elements for up to 50% of the upper level wall surface.

(d)       Garages, carports and outbuildings should be consistent in construction and finish with the ground floor of the house.

(e)       Garages and cross overs should make up no more than 50% of the width of the frontage of the site, or 7m in width where the frontage is less than 12m in width.

(f)        Roofs should be of clay or concrete tile, or Colorbond metal with feature details in timber or fibrous cement sheet.

(g)       Roofs to garages, carports and outbuildings should be consistent in roof pitch and materials with the house.

(h)       Building heights will be subject to clause 5.8 of the City of Busselton Local Planning Scheme 21. The reference to the mean high water mark means the mean high water mark of Geographe Bay.

(i)        Uniform fencing of limestone material or similar is to be provided at the POS interface.

(j)        The underside of any decks, at ground floor level, should be enclosed.

(k)       Retaining walls, facing the canal should be terraced with no face, greater than 1.2m high between steps. Any storage lockers should not protrude above the terrace or ground level.

(l)        Side fencing should not protrude forward of the of the building setback from a public road.

 


Council

67

28 January 2015

11.1

Attachment a

Transportable Homes Examples

 

ATTACHMENT A

 

EXAMPLES OF PREFABRICATED, TRANSPORTABLE AND MODULAR HOME 

shipping container homes perthmodular homes perth

 

Cube Modular Home Extensions Perth

 

 

Lohr Ave, Inverloch, Addition - Modular Homes - Melbourne

 

Approved 6 October 2014 Rural Residential ZoneIMG_0107shipping container homes perth


Council                                                                                      69                                                                28 January 2015

11.2           DA14/0408 - RESIDENTIAL ENTERPRISE (COMMERCIAL COOKING) - LOT 16 (No.33) SOUTHERN DRIVE, BUSSELTON

SUBJECT INDEX:

Planning/Development Applications

STRATEGIC OBJECTIVE:

A City of shared, vibrant and well planned places that provide for diverse activity and strengthen our social connections.

BUSINESS UNIT:

Development Services and Policy

ACTIVITY UNIT:

Statutory Planning

REPORTING OFFICER:

Senior Development Planner - Andrew Watts

AUTHORISING OFFICER:

Manager, Development Services - Anthony Rowe

VOTING REQUIREMENT:

Simple Majority

ATTACHMENTS:

Attachment a   Location Plan  

  

 

PRÉCIS

 

A planning application has been submitted to establish a Residential Enterprise at Lot 16 (No.33) Southern Drive, Busselton.

 

The proposal can satisfy Local Planning Scheme No. 21, provided it operates strictly within the requirements of a Residential Enterprise.

 

The application is recommended for approval subject to conditions.

 

 

 

BACKGROUND

 

The owner of 33 Southern Drive operates the ‘Spice Odysee’ food business utilising a City approved mobile food van. Current approvals with the City’s Environmental Health Services permit cooking to only be conducted from within the approved food van.

 

The storage of the food van at 33 Southern Drive and cooking from within the food van whilst parked at the premises is consistent with the definition of a ‘Home Occupation’ under Local Planning Scheme No.21. Home Occupation is a ‘P’ use within the Residential zone, meaning that it is a use which is permitted without requiring planning consent from the City where relevant development standards of the Scheme are being met.

 

The property owner has advised that due to the cooking facilities and environment within the food van not being suitable for periods of extended food preparation, they wish to establish a more suitable, permanent commercial use cooking facility within half of the outbuilding located at the rear of their premises.  The area of the outbuilding proposed to be used is approximately 38m2, which is greater than the area permissible for a Home Occupation and is such that the use would be considered under the Scheme to be a ‘Residential Enterprise’. Under the Scheme a Residential Enterprise is a ‘D’ (or ‘discretionary’) use and therefore requires planning approval.   

 

The application was referred to adjoining landowners for comment, as result of which one objection was received.

 

STATUTORY ENVIRONMENT

 

The key elements of the statutory environment that relate to the proposal are set out in the Local Planning Scheme.

 

The site is located in the ‘Residential’ zone. Objectives and policies of the zone particularly relevant to this application are as follows:

Objectives

(a)             To ensure, as a primary consideration, that the amenity and character of residential areas are maintained…

…Policies…

(b)             To provide for home-based employment where such will not -

(i)        involve exposure to view from any public place of any unsightly matter, or any raw material, equipment, machinery, product or stored finished goods; and

(ii)       have a material, adverse impact on residents…

 

Part 5 of the Scheme deals with General Development Requirements and clauses relevant to the establishment of Residential Enterprise are:

5.14           RESIDENTIAL ENTERPRISE

5.14.1    A residential enterprise shall –

 

(a)       not occupy an area greater than 40m2 or one-third the gross floor area of the dwelling, whichever is the lesser, provided further that the area within which it is conducted is not visible from the street or a public place;

 

(b)       be conducted only between the hours of 8.00am and 6.00pm on weekdays, 9.00am and 5.00pm on Saturdays and is not conducted on Sundays and public holidays;

 

(c)       not have more than one advertising sign and the sign displayed does not exceed 0.2m2 in area; and

 

(d)       not require the provision of any service main of a greater capacity than normally required for the zone in which the residence is located.

 

5.14.2    Where the local government grants planning approval for a residential enterprise, such planning approval -

 

(a)       must be personal to the person to whom it was granted;

 

(b)       must not be transferred or assigned to any other person;

 

(c)       does not run with the land in respect of which it was granted; and

 

(d)       must apply only in respect of the land specified in the planning approval.

 

Within the Scheme, Schedule 1 – Interpretations provides the following definition for Residential Enterprise:

 

"Residential Enterprise" means a business or activity carried out that -

 

(a)       is conducted at the normal residence of the person under whose name the activity or business is registered;

 

(b)       does not employ more than one person on a part-time, full-time or casual basis.  For the purposes of this clause, the person under whose name the activity or business is registered shall not be deemed to be an employee nor shall any other person whose duties are normally conducted away from the residence;

 

(c)       does not involve the sale or display of goods at the residence except where those goods are manufactured or produced at the residence.  For the purposes of this clause, the packaging or repackaging of goods or any process that does not involve a substantial material alteration to the primary article shall not be deemed to be a manufacturing or production process;

 

(d)       does not involve visits to the residence by clients other than by appointment only;

 

(e)       does not require the provision of any service main of a greater capacity than normally required for the zone in which the residence is located;

 

(f)        does not cause injury to, or prejudicially affect, the amenity of the neighbourhood, including (but without limiting the generality of the foregoing) injury or prejudicial affection due to the emission of light, vibration, smell, fumes, smoke, soot, dust, grit or waste products; and

 

(g)       does not result in the emission of any noise or any intermittent noise which, by virtue of its volume or pitch, is likely, in the opinion of the Council, to cause a nuisance to surrounding residents.

 

RELEVANT PLANS AND POLICIES

 

There are no Local Planning Policies relevant to this proposal.

 

FINANCIAL IMPLICATIONS

 

There are no identifiable significant financial implications to the City arising from this proposal or staff recommendation in this report.

 

STRATEGIC COMMUNITY OBJECTIVES

 

The recommendation of this report reflects Community Objectives 2.2, 3.1 and 3.3 of the Strategic Community Plan 2013, which are:

2.2          A City of shared, vibrant and well planned places that provide for diverse activity and strengthen our social connections.

3.1          A strong, innovative and diversified economy that attracts people to live, work, invest and visit.

3.3          A community where local business is supported.

 

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 individual risk, once controls are identified, is medium or greater. No such risks have been identified.

 

 

 

CONSULTATION

 

The proposed Residential Enterprise is a ‘D’ use in the Residential zone and has been referred to surrounding landowners for comment. Two submissions were received from adjoining landowners, one advising of no objection and one raising concerns in respect to cooking smells and requesting that if the proposal is to be approved that restrictions be placed on cooking times and no commercial traffic be permitted.  The City has also received a diary from the objecting neighbour demonstrating that the activity has been creating smells and over a period greater in a day than might otherwise be expected of a domestic situation.

 

City staff have met onsite with the applicant and the objecting landowner (including together) to try to produce a suitable solution for both parties and as a result there have been conditions recommended to be placed on the approval restricting the scale of the operation,  days and hours of operation, cooking times and delivery of supplies. It is understood that the objector remains concerned with the proposal and would prefer that it not be approved.

 

OFFICER COMMENT

 

The key questions requiring consideration in determining the application are seen as being:

 

1.    Is the scale of the proposal such that it is considered acceptable to be approved as a Residential Enterprise without impacting on the amenity of neighbouring land?

2.    Is the nature of any odours emitted by the proposal such that a reasonable person would be likely to find the smell offensive?

3.    Is the nature of the noise caused by the proposal likely to be unacceptable?

 

Scale of proposal

 

The City supports the development of small businesses, by allowing small business to operate as Home Occupation or Residential Enterprise.  However this is on the basis that it does not unreasonably adversely affect a neighbour. 

 

The applicant currently operates a single food van which has been approved by the City’s Health Services section. This van can be operated and used for cooking at a residential premises under the Home Occupation use class (which is permitted without planning approval), without the requirement for planning approval. It could therefore be argued that it is reasonable to consider cooking facilities designed to service only this same food van are of a scale which would be acceptable to be conducted from a residential zoned property, notwithstanding the fact that the floor area proposed to be used is such that it now requires planning approval as a Residential Enterprise. If however it was proposed to service more than one food van from cooking facilities on a residential zoned property this could be considered to be too large a scale to be acceptable to operate as a Residential Enterprise from residential zoned property.

 

If the scale of the development becomes such that it is unsuitable to be located within a residential area due to likely impacts on amenity of neighbouring properties, then this type of activity would be considered as an industrial use (in technical, planning terms), which is not permitted to be conducted from within the residential zone. On balance, officers consider the proposal is consistent with the scale of what is contemplated for a Residential Enterprise.

 

Odour

 

The Scheme provides that it is at the City’s discretion to approve a Residential Enterprise within the Residential Zone. 

The key to this matter is whether the proposal meets the elements of a Residential Enterprise including:

 

...(f)       does not cause injury to, or prejudicially affect, the amenity of the neighbourhood, including (but without limiting the generality of the foregoing) injury or prejudicial affection due to the emission of light, vibration, smell, fumes, smoke, soot, dust, grit or waste products; and…

 

The impact caused by odour/smell emissions is somewhat subjective and is not easily measured with a device in the way that wind speed or noise levels can be. The impact of odour is also influenced by climatic conditions such as heat, wind direction and wind speed. The mere fact that a development or activity results in an odour that can be smelled by others does not mean there has been a prejudicial effect. There are some odours that most people would see as positive and beneficial – the smell of a forest or the sea, for instance. There are other smells that almost all, if not all, people would see as negative – the smell from a tip site, for instance. Even negative smells, however, are not all equally negative to all people – some odours from industrial; processes, for instance, would be perceived more negatively by many people than an equivalent strength odour from a wastewater treatment plant. Food odours can, in fact, be positive or negative, the extent will depend upon both the nature of the odour and the way it is perceived by the person smelling the odour. For instance, someone who is a vegetarian may perceive the smell of their neighbour’s barbecue very negatively, whereas for other people, it may merely stimulate their appetite.

 

The neighbor concern in this case does appear to be linked to the particular nature of the food odours involved – i.e. the smell of ‘Indian’ cooking. In making a planning decision, however, the City does need to think about the issue in a more generic sense – i.e. as ‘food’ odours more generally. There are two reasons for this: (1) the City is not considering a proposal to cook ‘Indian’ food, it is a proposal to cook/prepare food more generally; and (2) the City needs to consider what a typical, reasonable person may consider to be acceptable, as the City cannot effectively delegate the decision about what is reasonable to one or more neighbours, who may or may not be more sensitive than the typical, reasonable person (and given the different views expressed by two of the neighbours, it is clear that there is no consensus that the food odours involved are unpleasant or indeed unacceptable).

 

In trying to understand this issue, the City has undertaken a review of State Administrative Tribunal decisions to find any that provide guidance – and there are none that would support a decision to refuse this application on the basis of odour concerns. There are also decisions that relate to larger scale, fast food premises, which would create significantly more odour emissions, both in WA and in other States, where odour impacts have been considered, and those decisions would point toward a view that the potential odour impacts of this proposal are acceptable. To reduce potential odour impacts further, however, a condition is proposed limiting cooking to mornings, Monday to Saturday only. The applicant is understood to be comfortable with such a conditions.

 

Noise

 

The main generator of noise from the proposal is likely to be the extraction system, which has in fact already been installed. The City has undertaken monitoring of the extraction system that has been installed to service the proposal, and that monitoring indicates it will likely comply with prescribed noise levels (in what are generally referred to the noise regulations) for 7am-7pm weekdays and Saturdays only. The hours of operation of Residential Enterprise, as per the Scheme, are actually more restrictive than those hours.

 

CONCLUSION

 

Overall, officers consider that the proposal is acceptable and it is therefore recommended for approval, subject to appropriate conditions. Officers do, however, certainly think the proposal is at the upper end, in terms of scale and potential impact on residential amenity, of what could reasonably be considered appropriate as a Residential Enterprise in an area with such a strong residential character.

 

OPTIONS

 

The Council could:

 

1.    Refuse the proposal, setting out reasons for doing so.

2.    Apply additional or different conditions.

3.    Grant temporary approval (e.g.12 months) to test further control and be satisfied operation is within the requirement of a Residential Enterprise, and invite the applicant to request extension/review of the limitation within this period.

 

TIMELINE FOR IMPLEMENTATION OF OFFICER RECOMMENDATION

 

The proponent and those who made a submission will be advised of the Council decision within two weeks of the Council meeting.

 

OFFICER RECOMMENDATION

That the Council determine:

 

1.    That the Application for a Residential Enterprise at Lot 16 (No.33) Southern Drive, Busselton is considered by the Council to be generally consistent with Local Planning Scheme No. 21 and the objectives and policies of the zone within which it is located.

 

2.    That Planning Consent be granted for the proposal referred in 1. above, subject to the following conditions:

 

a)      The development hereby approved shall be undertaken in accordance with the signed and stamped, Approved Development Plan(s) (enclosed), including any notes placed thereon in red by the City, and except as may be modified by the following conditions.

 

b)     The Residential Enterprise is permitted to service and store on the property one (1) food van only.

 

c)      Hours of operation of the business (including receipt of deliveries) are restricted to: between 8.00am and 6.00pm on weekdays; 9.00am and 12.00pm Saturdays; and, at no time on Sundays or public holidays.

 

d)     Hours when cooking associated with the business may occur are restricted to: between 8.00am and 12.00pm on weekdays; 9.00am and 5.00pm Saturdays; and, at no time on Sundays or public holidays.

 

e)     Advertising signage associated with the approved use shall be no greater than 0.2m2, located within the subject site;

 

f)      The Residential Enterprise hereby approved shall be conducted by Angia Thulasi Raman Sathish Kumar & Sathish Kumar KeerthanaIf Angia Thulasi Raman Sathish Kumar & Sathish Kumar Keerthana ceases to operate the Residential Enterprise, this Planning Consent, which is personal to Angia Thulasi Raman Sathish Kumar & Sathish Kumar Keerthana and does not run with the land, will expire.

 


Council

75

28 January 2015

11.2

Attachment a

Location Plan

 

 


Council                                                                                      83                                                                28 January 2015

12.             Engineering and Work Services Report

12.1           VALUATION OF LOT 500 RENDEZVOUS ROAD FOR THE PURPOSE OF A LEASE CONTRACT

SUBJECT INDEX:

Waste Management

STRATEGIC OBJECTIVE:

Infrastructure assets are well maintained and responsibly managed to provide for future generations.

BUSINESS UNIT:

Operations Services

ACTIVITY UNIT:

 Facility Services

REPORTING OFFICER:

Waste Coordinator - Vitor Martins

AUTHORISING OFFICER:

Director, Engineering and Works Services - Oliver Darby

VOTING REQUIREMENT:

Simple Majority

ATTACHMENTS:

Attachment a   Proposed lease area

Attachment b    Valuation report  

  

 

PRÉCIS

 

Lot 500 Rendezvous Road, Busselton on Reserve 22884 is Crown Land vested with the City of Busselton for the purpose of “Sand Pit”, Rubbish Disposal and Sanitary Site. Lot 500 forms part of the site of the City of Busselton Waste Transfer Station which comprises a total area of 26.4238 hectares. 

 

City staff have been negotiating with SITA Australia (SITA) in relation to the proposed lease of an area between 3500 and 5000 square meters of the Rendezvous Road tip site for the purpose of sorting Construction and Demolition Waste (C&D waste) delivered in skip bins from building sites.  Recovery of materials, such as sand, will assist with rehabilitation of the area and reduce the amount of material being diverted to Dunsborough for landfill in line with the State’s recycling targets and will contribute to extend landfill lifespan at Dunsborough Waste Facility.

 

This report recommends that Council resolve to endorse the valuation of the proposed disposal by way of lease obtained when negotiations with SITA began.  City officers will then advertise details of the proposed lease to SITA before returning to Council for formal approval of the proposed disposition in accordance with section 3.58 of the Local Government Act 1995.

 

 

BACKGROUND

 

On 1 July 2012 the City closed down Busselton Waste Facility as a landfill site. At the same time the City closed down the commercial building waste stockpile located within the adjoining lot and decided to only accept this waste type at Dunsborough.

 

The Busselton Waste Facility became a transfer station only, regulated under Licence L7120/1997/12 issued to the City by the Department of Environmental Regulation (DER) as premises prescribed for “Solid waste depot: premises on which waste is stored or sorted, pending final disposal or reuse”  under Schedule 1 of the Environmental Protection Regulations 1987.

 

The City commits to endeavor to meet State government targets for diversion of waste from landfill, which includes recycling C&D waste as a preferable option to disposing of it at the Dunsborough landfill, thus freeing up space to extend the waste infrastructure lifespan.

 

SITA Australia (SITA) provides waste collection services via skip bins to most of the home builders working in the Busselton/Dunsborough region. Currently the waste from these collections is disposed of at the Dunsborough Waste Facility, taking up valuable airspace.

 

In 2013 SITA approached the City to propose a partnership for sorting C&D waste at Busselton transfer station in mutually beneficial conditions. This partnership proposed would be in the form of an agreement under which the City would lease a portion of the Busselton Waste Facility (Rendezvous Road) to SITA, where SITA would undertake sorting of the waste delivered in skip bins from building sites. The area proposed comprises approximately 3600m3 and is shown on the plan attached (Attachment 1)

 

Reserve 22884 is managed by the City under a Management Order which does not include the power to lease.  City staff have discussed the proposed lease to SITA with the Department of Lands who have indicated their in-principle support of a change to the Management Order to accommodate the grant of a lease rather than a licence, subject to approval of the lease itself.

 

STATUTORY ENVIRONMENT

 

Local Government Act 1995

 

Section 3.58 of the Local Government Act 1995 (LGA) governs the procedure to be followed prior to a disposal of property by a local government. Disposal is defined to include leasing.

 

Before approval by Council, the City must publically advertise its intention to dispose of property and include details of the proposed lease such as the duration of the lease term and the market value of the disposition.  Any submissions made before the date specified in the notice must be given due consideration. 

 

On 19th May 2013 the City obtained a valuation of the market value of the proposed lease based on the potential leasing of an area of between 5000 to 6000 square meters (Attachment 2).  A subsequent valuation calculated on the same parameters was obtained on 8th January 2014 (Attachment 3) which confirmed that the square meter rate for a site of up to 6000m3 remained the same.  Where a valuation obtained by the City is more than 6 months old, Council may resolve that it believes that the valuation is a true indication of the value at the time of the proposed disposition.

 

Environmental Protection Act 1986

 

Waste management operations, including waste sorting activities and facilities, are subject to DER licensing conditions under Section 56.1 and 59 of the Environmental Protection Act 1986. Therefore, the proposed lease requires the City to hold a licence for recycling of construction and demolition waste at the site.

 

Contaminated Sites Act 2003

 

Lot 500 has been classified as “possibly contaminated – investigation required” under the Contaminated Sites Act 2003. The proposed use of a portion of the lot by SITA for the purpose of recycling building material waste does not impact the City adversely in relation to this classification.

 

RELEVANT PLANS AND POLICIES

 

The proposal in this report is consistent with the two adopted actions within the Corporate Business Plan 2013/2014 – 2016/2017.  The first relates to the requirement to assess the potential for the staged relocation of the Busselton Depot.  The recommendation in this report would not compromise such a strategy as the area in question represents a small part of the tip site and is for a 5 year term only. It is also proposed that the lease contain a break clause exercisable by the City or SITA two years after commencement of the term. 

 

The second action falls under the heading of ‘Waste Strategy’ and requires “… an effective and environmentally sound approach to waste minimisation and management”.  The proposed use of the site will assist the recycling of building material in the district and provide sand which the City can use for rehabilitation of the site.

 

FINANCIAL IMPLICATIONS

 

The proposed annual rent is $10,800 plus GST for the first year of the term, increasing by CPI on the anniversary of the rent commencement date. The lessee will be responsible for outgoings in relation to the site.  The independent valuations obtained in May 2013 and January 2014 both indicate a market rent of $3 per square meter, based on leasing an area of up to 6000 square meters.  The proposed rent of $10,800 per annum is based a lease of 3600 square meters on the same square meter rate.  City officers believe that the fact that the total area is less than the area contemplated in the valuations makes no material difference to the per meter rate.

 

Setup costs and operating expenses related to SITA’s use of the site will be met in full by SITA.  This will include any utilities and insurance cover as well as public liability.

The annual rent will be paid into the Waste Management Reserve.

 

STRATEGIC COMMUNITY OBJECTIVES

 

The proposal in this report falls within Key Goal Area 2 - Well Planned, Vibrant and Active Places - and contributes to community objective 2.3 – “Infrastructure assets are well maintained and responsibly managed to provide for future generations.

 

It also supports the Council strategy under Key Goal Area 5 - Cared for and Enhanced Environment - to “Develop and implement a strategy for the responsible provision of waste management services” by entering into an agreement that will assist rehabilitation of the tip site and create a short term revenue stream for the Waste Management Reserve.

 

RISK ASSESSMENT

 

An assessment of the potential implications of implementing the officers’ 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 are included below;

 

Risk

Controls

Consequence

Likelihood

Risk Level

SITA’s non-compliance with site licence conditions and related liability to the City as licence holder.

SITA will be required to indemnify the City for the cost of any action required to remedy a breach of the provisions of the licence issued to the City that SITA will operate under.   SITA have agreed to provide an unconditional bank guarantee in the sum of $60,000 as security for the performance of the obligations and conditions of the licence.

Moderate

Unlikely

Medium

SITA contaminating site in excess of existing (baseline) contamination

Benchmark contamination assessment obtained. Contract scope restricted to inert waste.

Obligation for SITA to remediate any additional contamination and to present final contamination assessment report.

Major

Rare

Medium

Risk of reduced income from tip fees collected from SITA at Dunsborough Waste Facility (net value at risk estimated at $100,000 per annum).

As with any other of building waste customer, there is no contractual obligation for SITA to dispose of their waste at any of the City’s sites.

SITA are still expected to use Dunsborough Waste Facility for disposal of the residual waste of their sorting operations.

Minor

Almost certain

High

 

CONSULTATION

 

The City’s intention to enter a lease agreement has been advertised periodically in the local paper, initially based on the proposed lease of a larger area and subsequently reflecting the smaller area and rent described above. 

Although interest was expressed over the phone by at least one other company, no formal expression of interest submissions were made by any third party.

 

Negotiations have therefore continued with SITA who remain keen to lease the site and are the sole prospective lessee.

 

OFFICER COMMENT

 

SITA is proposing to lease a portion of the Busselton Waste Facility (Attachment 1) to undertake sorting of mixed builders waste including sand, rubble and wood, all suitable for re-use. SITA proposes recovering these materials and estimates that approximately 200 tonnes of sand, rubble and wood would be diverted from the Dunsborough landfill per month.

 

The long term proposal for this area is to relocate the City’s depot and, subject to site investigations and feasibility studies, develop a regional sporting facility. The lease to SITA will not compromise this potential development as the lease area is outside of the area earmarked for the City’s depot and the sporting facility. In addition the proposed 5 year term of the lease to SITA after the second anniversary of the Commencement Date, either party may, by giving no less than 6 months’ written notice to the other party, terminate this Lease.  Lastly, the proposed area, compared to the whole site, is relatively small and would not hinder the progression of these actions.

 

Licencing requirements of the site

 

The City was granted a licence to use Lot 500 Rendezvous Road as a “solid waste depot; premises on which waste is stored or sorted, pending final disposal or reuse” commencing on 17 December 2012 and expiring on 16 December 2017.

 

Conversations with Department of Environment Regulation indicate that they have no objection to a private company operating within the existing premises under the City’s transfer station license conditions. Accordingly, an amendment to Licence L7120/1997/12 has been issued on 06/11/2014.  SITA will, in the terms of the proposed lease to them, be required to comply with the conditions of this licence (as amended) that are relevant to their use of the site.

 

Licence expiration and any change to the license introduced by DER that might affect the City’s ability to honour the lease agreement will automatically determine the end of the City’s obligations towards SITA to the appropriate extent. In particular, if the City does not intend to renew its Licence for the premises for any reason, then the City will give SITA at least 6 months prior written notice, after which SITA will either terminate the lease agreement or apply for their own License.

 

This also means that if DER decides to amend the License conditions so as to impose new or changed obligations, SITA will be bound by those obligations.

 

Contaminated status of the site

 

From the lease commencement date, SITA will be responsible for all and any contamination caused as a result of its use and occupation of the premises.

 

If any significant contamination is caused in addition to the pre-existing contamination as a result of SITA’s operation at the site, SITA will be required to remediate such contamination and any reasonable expense incurred by the City will be owed by SITA. In addition, SITA will be required to keep current public risk liability insurance of $ 20 million in connection to the property, including coverage of contamination risks. Also, a $60,000 bond will held by the City in the form of a bank guarantee to cover compliance of all of SITA’s obligations under the lease contract, including SITA’s environmental obligations.

 

A baseline (benchmark) initial site assessment, including soil sampling and lab testing, was undertaken by SITA and approved by the City, in order to establish the pre-existing site conditions in respect to contamination. With that information both parties will be able to determine any potential future variations from existing site contamination conditions of the leased area.

 

SITA will also be required to submit a final site contamination assessment report, at its cost, prior to the termination or expire of the lease. SITA must remediate any contamination in excess of levels and nature of contamination as identified in the benchmark report.

 

Overall assessment of the project

 

In the City’s perspective the proposed lease agreement and partnership project with SITA is intended to

 

a)    improve C&D waste recycling within the City district,

b)    extend landfill lifetime/capacity

c)    provide recycled construction materials for the City;

d)    re-position the City to address its obligations under the law, in particular, the focus on waste from residential sources for which no other alternative is currently available (as opposed to focusing on recyclable, non-residential waste).

 

According to the Waste Hierarchy adopted by Western Australia’s waste strategy, landfill disposal of waste is at the bottom of waste management priorities. Waste recycling is, thus, deemed as a higher order preference for all waste streams, including C&D waste.

 

On the other hand, recycled clean fill produced by SITA will significantly benefit the City. A saving is expected to accrue to the City as a result of reduced construction costs for the Busselton Transfer Station project, which will need amounts of clean fill material for preliminary earth works. The amount of clean fill to be purchased will be minimised by incorporating recycling material.

 

The estimated airspace saved over a 20 year period is around 1.2 years. This means that diverting SITA’s sand and rubble from landfill would save the City approximately 1 year worth of airspace over the next 20 years.

 

Moreover, freeing airspace by diverting recyclable, inert, non-residential waste materials from landfill and saving that airspace for non-recyclable/putrescible residential waste for which there is currently no alternative option allows the City to re-position its activities more in line with its obligations under the Waste Avoidance and Recovery Act 2007 (WARR Act), which defines local government waste as waste from residential sources. This means that the airspace savings would benefit landfill capacity to deal with residential waste, thereby roughly increasing landfill lifetime by approximately 1 year.

 

As a direct consequence of reduced landfill disposal and increased recycling of building waste, revenue from landfill charges are expected to be reduced, with an expected negative financial impact for the City’s waste management operations during the current financial year (a potential loss of around $100,000).

 

This adjustment will come about as a result of a reduction in C&D waste disposal services by the City and is not expected to adversely affect financial sustainability of current municipal solid waste management operations. It can be interpreted as the natural outcome of the strategic decision of increasing recycling, extending landfill lifespan and re-focusing landfill capacity on residential waste.

 

However, this risk is really associated with the fact that SITA is intent on pursuing a C&D recycling project, regardless of whether or not the City enters into a lease agreement with them. Regardless of the location of SITA’s project, their intention to pursue this type of project would always entail the risk of foregone income for the City due to reduced waste disposed of at the landfill.

 

Finally, the current charge does reflect the approximate cost of airspace. Therefore, the loss in revenue is not expected to reflect an equal loss in economic value, as the City will gain landfill capacity within the current disposal cell, potentially offsetting the foregone financial loss.

 

CONCLUSION

 

The lease agreement and partnership project with SITA for C&D waste is recommended on the basis that it will contribute to increase to the City’s recycling strategy without a significant economic impact.

 

Given the location and land use of the site, no major factor has come into play since the date of the valuation dated 8/01/2014. Therefore, it is our understanding that said valuation is a true indication of the value at the time of the proposed disposition.

 

OPTIONS

 

1. Council can choose not to enter into a lease with SITA and request City staff to look into other options for generating revenue at the site.

 

2. Council can resolve not to enter into a lease or do anything further with the site pending the progression of feasibility studies into the potential for relocation of the depot and the long term option of developing a regional sporting facility.

 

3. Council may choose not to accept the recommendation in relation to the valuation and instruct officers to seek a new valuation.

 

TIMELINE FOR IMPLEMENTATION OF OFFICER RECOMMENDATION

 

The City will enter a contract with SITA as soon as Management Order for Reserve 22884 is amended to grant the City power to Lease Lot 500. This is expected to occur by March 2015.

 

 

OFFICER RECOMMENDATION

1.        

That the Council:

 

1.       In accordance with section 3.58(4)(c)(ii) of the Local Government Act 1995, agrees that the valuation carried out by LMW Hegney on 8 January 2014, indicating the market rent for a portion of Lot 500 Rendezvous Road, Vasse, at a rate $3 per square meter is a true indication of the value of the current market rent for a portion of the land.

2.    Authorises the CEO to give local public notice for a period of 14 days of its intention to enter into a lease agreement with SITA Australia Pty Ltd, for 3600 square meters of Lot 500 Rendezvous Road, Vasse for a term of 5 years at a rent of $10,800 per annum.

 

 


Council

83

28 January 2015

12.1

Attachment a

Proposed lease area

 


Council

87

28 January 2015

12.1

Attachment b

Valuation report

 


 


Council

87

28 January 2015

12.1

Attachment b

Valuation report

 


Council

87

28 January 2015

12.1

Attachment b

Valuation report

 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 

 


Council                                                                                      111                                                             28 January 2015

13.             Community and Commercial Services Report

Nil


Council                                                                                      121                                                             28 January 2015

14.             Finance and Corporate Services Report

14.1           FINANCIAL ACTIVITY STATEMENTS – PERIOD ENDING 30 NOVEMBER 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

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 30 November 2014  

  

 

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 30 November 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

 

Not applicable.

 

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

 

Not applicable.

 

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: 

Land and Buildings

Plant and Equipment

Furniture and Equipment

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 30 NOVEMBER 2014

   

Operating Activity

 

§  Operating Revenue

 

As at 30 November 2014, there is a variance of +0.7% in total operating revenue, with the following categories exceeding the 10% material variance threshold:  

 

Description

Variance

%

Variance

$000’s

Operating Grants, Subsidies and Contributions

+44%

+$628

Other Revenue

-26%

-$61

Non-Operating Grants, Subsidies and Contributions

-12%

-$297

Profit on Asset Disposals

+596%

+$7

 

A summary of the above variances is provided as follows:

 

Operating Grants, Subsidies and Contributions (+$628K)

This variance is primarily attributable to:

§ The earlier than projected raising of an invoice for the (half-yearly) Busselton Jetty Licence Agreement instalment (+$346K)   

§ The receipt of an unbudgeted natural disaster claim in respect of September 2013 storm damage (+$99K)

§ The receipt of an unbudgeted Local Government Insurance Services (LGIS) Scheme surplus distribution (+$50K)

§ A range of minor grants and reimbursements received in advance of associated budget projections   

      

In considering the October 2014 Financial Activity Statement reports, the Council determined to quarantine the unbudgeted natural disaster claim receipt of $99K, and the LGIS Scheme surplus of $50K, to the Infrastructure Development Reserve. At which time the associated budget amendments are processed, this will reduce the value of the overall variance in this category.

 

Other Revenue (-$61K)

This variance is primarily attributable to:

§ Fines and penalties revenue (primarily parking fines) is falling short of year to date budget estimates (-$26K)

§ A scheduled transfer of bond monies for Birchfields landscape maintenance is falling short of year to date budget estimates (-$23K)

§ Scrap metal sales are falling short of year to date budget estimates, primarily due to timing  differences (-$25K)

§ Unbudgeted registration fees associated with the Mayoral Prayer Breakfast ($11K) have been received, albeit $6K in unbudgeted expenditure has also been incurred against this activity   

 

Non-Operating Grants, Subsidies and Contributions (-$297K)

The current variance is primarily attributable to:

§ The receipt of additional developer contributions over year to date budget estimates (+$521K)

§ The accounting recognition of a donated fire tender from DFES (+$117K)

§ Timing differences associated with the receipt of capital grant funding including, but not limited to:

Roads to Recovery grant funding (-$439K)

Airport terminal building and Airport related infrastructure works (-$386K)

Beach Restoration grant funding (-$203K)

Busselton Shark Net grant funding (+$100K)

    

Profit on Asset Disposals (+$7K)

The current variance is primarily attributable to book profits on the sale, through auction, of obsolete computer equipment and sundry plant items. In most cases, the items had a zero written down value, with any funds received representing a book profit on disposal. It should be noted that this is an accounting entry only, and has no direct impact on the Net Current Position.       

 

§   Operating Expenditure

 

As at 30 November 2014, there is a variance of -6.9% in total operating expenditure, with the following categories exceeding the 10% material variance threshold:  

 

Description

Variance

%

Variance

$000’s

Materials and Contracts

-30%

-$2,045

Utilities

-19%

-$171

Depreciation on Non-current Assets

+19%

+$818

Insurance Expenses

-12%

-$92

Allocations

-12%

-$103

Interest Expenses

-34%

-$113

Loss on Asset Disposals

+394%

+$70

 

A summary of the above variances is provided as follows:

 

Materials and Contracts (-$2,045K)

Due to the nature of this expenditure category, variances are evident across a broad range of activities. However, the major variances, which are predominantly due to timing differences, include:

§ Collective contractor expenditure is presently $1,166K below year to date budget estimates and includes, amongst others, recycling contractors (-$346K), Busselton Jetty contractors (-$212K), coastal protection related contractors (-$172K), Vasse & Provence specified area rate contract maintenance works (-$186K) and also numerous building contractor related works (e.g. Nautical Lady Lighthouse demolition of $150K)

§ Collective consultancy expenditure is presently $291K below year to date budget estimates

§ Building maintenance services (including contract cleaning and general maintenance) are presently $144K below year to date budget estimates

§ Collective Legal expenses are presently $85K below year to date budget estimates

 

The remainder of the variance is attributable to a variety of budget shortfalls in contractor expenditures, material purchases, maintenance of plant and equipment and non capital asset acquisitions. However, as previously mentioned, the current collective variance is primarily as a result of budget timing matters at this juncture.    

 

Utilities (-$171K)

This variance is primarily attributable to timing differences in the levying of utility invoices, including water consumption charges, and to a lesser extent electricity charges. As a result of the repealing of the carbon tax, it is estimated that the City’s electricity charges will reduce by up to $70K during 2014/15. However the actual extent of any savings will be dependent upon, amongst others, overall electricity usage during the financial year and the associated performance against budget estimates.           

 

Depreciation on Non-current Assets (+$818K)

This variance is primarily attributable to the Buildings fair value valuation (as at 30 June 2014), coupled with the significant value of donated assets brought to account as at last financial year end. The depreciation budget is developed reasonably early in the annual budget process, based on financial year end projections. Whilst generally accurate, this approach has this year been impacted by the aforementioned activities, the outcomes of which were not known until very late in the 2013/14 financial year. It should be noted however that depreciation expense is reversed as a non cash adjustment, and as such has no net effect on the Net Current Position.                       

 

Insurance Expenses (-$92K)

This variance is primarily attributable to property and plant insurance premiums, which presently reflect variances of -$46K and -$52K respectively. Whilst an end of financial year saving is anticipated in this category, additional expenses will be incurred throughout the year as additions are made to the City’s Insurance Schedule.                     

 

Allocations (-$103K)

This activity incorporates numerous internal accounting allocations. Whilst the majority of individual allocations are administration based (and clear each month), the activity also includes plant and overhead related allocations. Due to the nature of these line items, the activity reflects as a net offset against operating expenditure, in recognition of those expenses that are of a capital nature (and need to be recognised accordingly). Variances, particularly early in the financial year, are not uncommon, as the activity is highly dependent upon a range of works related factors.                

 

Interest Expenses (-$113K)

This variance is attributable to the initial repayment on the Civic and Administration Centre loan facility. The facility was drawn on 5th August 2014 and in order to have an initial repayment on 30 September 2014, the interest component of the first repayment was lower than budget projections. However, this meant that the initial principal repayment was higher than projected in the budget, as is reflected in the ‘Total Loan Repayments – Principal’ capital expenditure activity.           

 

In considering the October 2014 Financial Activity Statement reports, the Council determined to quarantine budget savings associated with this loan facility (totalling approximately $84K) to the Infrastructure Development Reserve.  At which time the associated budget amendment is processed, this will reduce the value of the overall variance in this category.                       

 

Loss on Asset Disposals (+$70K)

This variance is due to book losses on the sale, through auction, of obsolete computer equipment, sundry plant items and a range of light vehicles. The predominant (single) book loss ($11K) relates to the write off of a boat ramp structure at Scout Road. It should be noted that this is an accounting entry only, and has no direct impact on the Net Current Position.       

 

 

 

 

Capital Activity

 

§  Capital Revenue

 

As at 30 November 2014, there is a variance of +0.4% in total capital revenue, with the following category exceeding the 10% material variance threshold:  

 

Description

Variance

%

Variance

$000’s

Proceeds from Sale of Assets

+27%

+$46

 

A summary of the above variance is provided as follows:

 

Proceeds from Sale of Assets (+$46K)

This variance is primarily due to timing differences, including the earlier than projected sale (via trade-in) of a front end loader.        

 

§  Capital Expenditure

 

As at 30 November 2014, there is a variance of -12.6% in total capital expenditure, with the following categories exceeding the 10% material variance threshold: 

 

Description

Variance

%

Variance

$000’s

Land & Buildings

-16%

-$389

Plant and Equipment

-20%

-$137

Furniture and Office Equipment

-51%

-$123

Infrastructure

-59%

-$4,440

Total Loan Repayments - Principal

+29%

+$89

Advances to Community Groups

-100%

-$30

Transfers to Restricted Assets

+142%

+$612

 

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 Office Equipment

§   Infrastructure

 

A summary of the remaining variances is provided as follows:

 

Total Loan Repayments – Principal (+$89K)

This variance is attributable to the initial repayment on the Civic and Administration Centre loan facility. The facility was drawn on 5th August 2014 and in order to have an initial repayment on 30 September 2014, the principal component of the first repayment was higher than budget projections. However, this meant that the initial interest repayment was lower than projected in the budget, as is reflected in the ‘Interest Expenses’ operating expenditure activity.

 

In considering the October 2014 Financial Activity Statement reports, the Council determined to quarantine budget savings associated with this loan facility (totalling approximately $84K) to the Infrastructure Development Reserve.  At which time the associated budget amendment is processed, this will reduce the value of the overall variance in this category.                       

 

 

Advances to Community Groups (-$30K)

This matter relates to the drawdown of the budgeted self-supporting loan of $30K in favour of the Busselton Football and Sportsman’s Club; to carry out repairs to the Bovell Park football clubrooms. It has been advised that the repairs/ renovations are proposed to commence early next calendar year, after the Southbound event.        

 

Transfers to Restricted Assets (+$612K)

The favourable variance is due to the receipt of developer contributions (predominantly pertaining to the Vasse Newtown and Via Vasse subdivisions) totalling approximately $897K, along with bond and deposit payments totalling approximately $146K. It should be noted however that due to the nature of associated transactions, performance in this category has no direct impact on the City’s net current position.  

 

BUDGET VARIATIONS AND OTHER ‘KNOWNS’

 

As part of its December 2014 meeting, the Council determined to quarantine previously identified ‘windfall’ revenues and loan repayment savings (totalling $233K) to the Infrastructure Development Reserve. No additional budget variations have been identified during the intervening period.    

  

CONCLUSION

 

The City’s financial performance to the end of November 2014 is considered satisfactory. Collective operating revenue reflects a nominal favourable variance (0.7%) on a year to date basis, with the major recurrent categories (i.e. rates and fees and charges) both tracking slightly above year to date budget estimates. Whilst the Non-operating grants, subsidies and contributions category is presently falling short of year to date budget estimates (even with the inclusion of additional contributions and donated assets), performance in this category will have a corresponding impact on the capital expenditure category. Whilst collective operating expenditure also reflects a favourable year to date variance (6.9%), the exclusion of depreciation increases the variance to over 10%, with the current underspends in Materials and Contracts being the major contributor.

 

From a capital perspective, capital revenue reflects a nominal favourable variance of 0.4% on a year to date basis, with no specific comment considered necessary in relation the current performance in individual categories. Conversely, capital expenditure is presently reflecting a favourable variance of some 13% (even with the inclusion of an additional $1M restricted asset transfers). The major contributors to the current underspend are Land and Buildings (-$389K) and Infrastructure (-$4,440K). It is acknowledged however that the current variance can be largely attributed to timing differences, in addition to a change in the scope of works in certain instances (e.g. Rubbish Site Development acquisition not proceeding in 2014/15). As part of the December 2014 Financial Activity Statements, specific commentary on year to date performance in the relevant capital expenditure categories will be provided.                  

 

OPTIONS

 

The Council may determine not to receive the statutory financial activity statement reports.

 

TIMELINE FOR IMPLEMENTATION OF OFFICER RECOMMENDATION

 

NA.

 

 

 

 

OFFICER RECOMMENDATION

 

That the Council receives the statutory financial activity statement reports for the period ending 30 November 2014, pursuant to Regulation 34(4) of the Local Government (Financial Management) Regulations.

 


Council

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28 January 2015

14.1

Attachment a

Financial Activity Statements - Period Ending 30 November 2014

 


 


Council

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Attachment a

Financial Activity Statements - Period Ending 30 November 2014

 


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Attachment a

Financial Activity Statements - Period Ending 30 November 2014

 


 


 


 


 


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Attachment a

Financial Activity Statements - Period Ending 30 November 2014

 


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Attachment a

Financial Activity Statements - Period Ending 30 November 2014

 


 


 


 


 


 


 


 


Council                                                                                      141                                                             28 January 2015

14.2           CITY OF BUSSELTON ACTIVITIES IN THOROUGHFARES AND PUBLIC PLACES AND TRADING LOCAL LAW 2015

SUBJECT INDEX:

Local Laws

STRATEGIC OBJECTIVE:

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

BUSINESS UNIT:

Corporate Services

ACTIVITY UNIT:

Corporate Services

REPORTING OFFICER:

Legal Officer - Briony McGinty

AUTHORISING OFFICER:

Director, Finance and Corporate Services - Matthew Smith

VOTING REQUIREMENT:

Absolute Majority

ATTACHMENTS:

Attachment a   Activities in Thoroughfares and Trading in Public Places Local Law 2015  

  

 

PRÉCIS

 

The Council previously resolved to commence the law-making process for the new City of Busselton Activities in Thoroughfares and Public Places and Trading Local Law 2015 (proposed local law) and at the close of the public consultation period submit a report to the Council.

 

The purpose of this report is for the Council to consider submissions received and whether to make the proposed local law pursuant to Section 3.12 of the Local Government Act 1995 (the Act). It is recommended that the Council resolve to make the proposed local law.

 

BACKGROUND

 

The Council resolved at its meeting on 24 September 2014 as follows:

 

That the Council:

 (1)   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)    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, submit 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.

 

The previous report to Council contains more detailed information on the background, purpose and intent of the proposed local law. 

Pursuant to the above mentioned council resolution, the proposed local law was advertised for public comment.  The period for public submissions closed on 18 November 2014 and following the process under section 3.12 of the Act, the proposed local law is now referred back to the Council for consideration of submissions, and to resolve whether or not to make the proposed local law.

 

STATUTORY ENVIRONMENT

 

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.

 

In terms of Section 3.12(4) of the Act the Council is to consider any submissions made and may make the local law as proposed or make a local law that is not significantly different from what was proposed. A decision to make a local law has to be supported by an absolute majority of the Council. 

 

If the Council resolves to make the local law then the process required under section 3.12(5) and (6) of the Local Government Act needs to be carried out. Section 3.12(5) requires that the local law be published in the Government Gazette and a copy be provided to the Minister for Local Government. Section 3.12(6) requires that after the local law has been published in the Government Gazette, the City must give local public notice stating the title of the local law, summarising the purpose and effect of the local law and advising that copies of the local law may be inspected or obtained from the City office.

 

In accordance with section 3.14 the local law will come into operation 14 days after publication in the Government Gazette.

 

RELEVANT PLANS AND POLICIES

 

Nil.

 

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:

 

6.2 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

 

In accordance with the requirements of section 3.12(3)(a) of the Act the proposed local law was advertised publicly in both local and state-wide papers for a minimum of six weeks and a copy given to the Minister for Local Government.

 

No submissions have been received from the public. The Department of Local Government made certain comments and suggestions in respect of drafting improvements and issues which could be raised by the Joint Standing Committee on Delegated Legislation (JSC) (a parliamentary committee with delegation to scrutinise and recommend the disallowance of local laws to the Parliament of Western Australia), some of which have been incorporated into the proposed local law. 

 

OFFICER COMMENT

 

The City currently implements the following local laws covering various activities that take place on thoroughfares and in public places:

 

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).

 

A number of these local laws are inconsistent with model local laws developed by the Western Australian Local Government Association (WALGA), cover subject matter which has been superseded by State legislation or use terminology which is inconsistent with current legislation and are therefore considered to be outdated. Council subsequently resolved to make the proposed local law which is based on the WALGA “Activities in Thoroughfares and Public Places and Trading” model local law and in the process repeal abovementioned local laws.

 

The statutory consultation process which followed Council’s decision to commence the law making process resulted in certain changes being made to the local law as was proposed. These changes are outlined below:

 

·   Title changed from 2014 to 2015.

·   Numerous grammatical changes for the purposes of clarity.

·   Clause 2.2(1)(f) prohibits depositing or discharging of certain material in or on a thoroughfare (e.g wastewater, waste, mud, concrete, paint, oil or chemicals). The wording has been modified to be more specific in order to prevent this clause from considered being vague and to ensure it will not lead to unreasonable outcomes.

·   Permissible verge treatments may also be installed on verges abutting land zoned Industrial.

·   The wording of clause 2.7 has been amended following suggestions from the DLG, however, the effect remains the same. Essentially a person may install either lawn or garden on the portion of verge abutting their house. References to hard materials for constructing vehicle crossovers have been removed as this is adequately covered in the Uniform Local Provisions and the City’s Standards and Specifications. Alternative designs may be approved, however, this is upon application to the City.

·   Clause 4.1 has been amended to specify that the prohibition on animals does not apply to guide dogs and other assistance animals.

 

In terms of section 3.13 of the Act if, during the procedure for making a proposed local law, Council decides to make a local law that would be significantly different to what it first proposed, the law making process has to be recommenced. It is considered that abovementioned modifications will add clarity to the text of the proposed local law, ensure consistency with other legislation and avoid concerns which Parliament may have had with the wording of the original version of the proposed local law. These modifications do not change the purpose, intent and effect of the original version of the proposed local law and therefore the proposed local law is not considered to be significantly different from what was first proposed.

 

It is considered that the submissions and comment received do not necessitate any further changes to the proposed local law.

 

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 make the proposed local law.

 

OPTIONS

 

As an alternative to the Officer recommendation (as per Officer Recommendations 1 and 2 below), Council has the following options regarding the regulation of thoroughfares and trading:

 

Option 1

               

Not to proceed with making the proposed local law and rely on the current local laws to regulate thoroughfares and trading. 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 make the proposed local law.

 

Option 2

 

Refer the proposed local law to the Policy and Legislation Committee for reconsideration and to make further amendments to the proposed local law. However, as the proposed local law is based on the WALGA “Activities in Thoroughfares and Public Places and Trading” model local law and no issues have been identified during the consultation process it is unclear as to what improvements could be made. In addition, significant changes to the local law could require re-advertising of the proposed local law in accordance with the Act. Therefore this option is also not recommended.

 

TIMELINE FOR IMPLEMENTATION OF OFFICER RECOMMENDATION

 

Should the Council resolve to make the proposed local law it will need to be gazetted and will come into operation 14 days after that publication. The timeframe for completion of the gazettal process is approximately thirty days from the date of the Council resolution.

 

OFFICER RECOMMENDATION

ABSOLUTE MAJORITY DECISION OF COUNCIL REQUIRED

 

That the Council:

 

1.    Resolves to make the City of Busselton Activities in Thoroughfares and Public Places and Trading Local Law 2015 in accordance with section 3.12(4) of the Local Government Act 1995.

 

2.    Authorises the Chief Executive Officer to carry out the processes required to make the City of Busselton Activities in Thoroughfares and Public Places and Trading Local Law 2015 in accordance with section 3.12(5) and section 3.12(6) of the Local Government Act 1995.

 

 

 


Council

177

28 January 2015

14.2

Attachment a

Activities in Thoroughfares and Trading in Public Places Local Law 2015

 

 

 

 

 

 

 

 

 

 

 

 

Activities in Thoroughfares and Public Places and Trading

Local Law 2015

 

 

 

 

 

 

Local Government Act 1995

 

 

 

 

 

 

 

 

 

 

 


 

LOCAL GOVERNMENT ACT 1995

 

City of Busselton

 

ACTIVITIES IN THOROUGHFARES AND PUBLIC PLACES AND TRADING LOCAL LAW

 

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 or 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      Application

2.7      Permissible verge treatments

2.8      Only certain verge treatments to be installed

2.9      Obligations of owner or occupier

2.10    Notice to owner or occupier

2.11    Transitional provision

2.12    Power to carry out public works on verge

Division 4 - Numbers and Fencing

2.13    Assignment of numbers

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

Division 5 - Signs erected by the local government

2.15    Signs

2.16    Transitional

Division 6 - Driving on a closed thoroughfare

2.17    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

3.4      Exemption

3.5      Impounding of advertising signs

Part 4 - OBSTRUCTING ANIMALS, VEHICLES OR SHOPPING TROLLEYS

Division 1 - Animals and vehicles

4.1      Leaving animal or vehicle in public place

4.2      Prohibitions relating to animals

4.3      Removal of vehicle or animal

Division 2 - Shopping trolleys

4.4      Interpretation

4.5      Shopping trolley to be marked

4.6      Person not to leave trolley in public place

4.7      Retailer to remove abandoned trolley

4.8      Retailer taken to own trolley

4.9      Impounding of abandoned 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

6.7      Renewal of permit

6.8      Transfer of permit

6.9      Production of permit

6.10    Cancellation of permit

Part 7 - OBJECTIONS AND APPEALS

7.1      Application of Part 9 Division 1 of Act

Part 8 - MISCELLANEOUS NOTICES

8.1      Redirect or repair sprinkler

8.2      Remove hazardous plants

8.3      Repair damage to thoroughfare

8.4      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

 


 

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 2015.

1.2         Commencement

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

1.3         Application

This local law applies throughout the district.

1.4         Repeal

The following local laws are repealed –

(a)          Municipality of the Shire of Busselton By-laws relating to the Depositing and Removal of Refuse, Rubbish, Litter and Disused Materials published in the Government Gazette on 16 June 1978;

(b)          Municipality of the Shire of Busselton By-law relating to Street Lawns and Gardens published in the Government Gazette on 15 April 1994;

(c)          Municipality of the Shire of Busselton By-law relating to Removal and Disposal of Obstructing Animals or Vehicles published in the Government Gazette on 30 September 1977;

(d)          Busselton Road Board Building By-laws – Numbering of Houses published in the i on 29 June 1955;

(e)          Municipality of the Shire of Busselton By-laws relating to Trading in Public Places published in the Government Gazette on 4 September 1992;

(f)          Municipality of the Shire of Busselton By-law relating to Eating Areas in Streets and other Public Places published in the Government Gazette on 21 January 1994; and

(g)          Municipality of the Shire of Busselton 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.

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;

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

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;

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 –

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

(d)          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

(1)          A person shall not -

(a)          plant any plant on a thoroughfare;

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

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

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

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

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

(d)          take, injure or kill any fauna that is on or above any thoroughfare;

(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)          Clause 2.1(1) does not apply to an activity being undertaken by a person who –

(a)          is an employee or contractor of the local government and is authorised or engaged to undertake that activity; or

(b)          is otherwise lawfully authorised to undertake that activity

2.2         Activities allowed with a permit - general

(1)        A person shall not, except under a permit –

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

(b)          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)          deposit or discharge any material including dust, sand, wastewater, waste, mud, concrete, paint, oil or chemicals (but excluding water) in or on a thoroughfare whether by hand, vehicle or otherwise;

(g)          damage a thoroughfare;

(h)          light any fire or burn any thing on a thoroughfare;

(i)           prune or fell any tree in or onto a thoroughfare;

(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;

(k)          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;

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

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

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

(2)          Clause 2.2(1) does not apply to an activity being undertaken by a person who –

(a)          is an employee or contractor of the local government and is authorised or engaged to undertake that activity; or

(b)          is otherwise lawfully authorised to undertake that activity.

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

2.3         No possession or 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         Application

Clause 2.7 applies only to a verge which abuts land zoned Residential or Industrial, as designated under the local planning scheme.

2.7         Permissible verge treatments

(1)          Notwithstanding clause 2.1(1)(a), an owner or occupier of land which abuts a verge may on that part of the verge directly in front of her or his land install a permissible verge treatment.

(2)          To avoid doubt, the general prohibitions of Division 1 (except clause 2.1(1)(a)) apply where a permissible verge treatment is installed.

(3)          A permissible verge treatment is –

(a)          the planting and maintenance of a lawn; or

(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.

2.8         Only certain verge treatments to be installed

(1)          A person shall not install or maintain a verge treatment which is not a permissible verge treatment, except under the authority of a permit.

(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.

2.9         Obligations of owner or occupier

An owner or occupier who installs or maintains a permissible verge treatment, or who installs or maintains  verge treatment under the authority of a permit, shall -

(a)          keep the 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 that 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 that 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.

2.10       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.

2.11       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.

2.12       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

2.13       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.

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

For the purpose of item 4(1) of Division 1 of Schedule 3.1 of the Act, a public place, as that term is defined in clause 1.5 is specified as a public place.

Division 5 - Signs erected by the local government

2.15       Signs

(1)          The 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.

2.16       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

2.17       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, erect, place or maintain an advertising sign

(a)          on or above a thoroughfare;

(b)          on a path;

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

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

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

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

(2)          Notwithstanding subclauses (1) and (2), 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.

3.3         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

Any sign which contravenes clause 3.2 may be removed, impounded or disposed of in accordance with Subdivision 4 of Division 3 of Part 3 of the Act and regulation 29 of the Regulations.

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.

(2)          This clause does not apply to a person with a disability where the animal is a guide dog or assistance animal as defined in the Disability Discrimination Act 1992 (Commonwealth) Section 9(2).

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

Any animal or vehicle left in contravention of clause 4.1 may be removed, impounded or disposed of in accordance with Subdivision 4 of Division 3 of Part 3 of the Act and regulation 29 of the Regulations.

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

Any  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),

may be  removed, impounded or disposed of in accordance with Subdivision 4 of Division 3 of Part 3 of the Act and regulation 29 of the Regulations.

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 other local law made by the local government;

(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)          comply with the terms and conditions of the permit to establish and conduct the facility;

(b)          ensure that the facility is conducted at all times in accordance with the provisions of this local law and any other local law made by the local government;

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

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

(e)          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

(f)          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, impounded or disposed of in accordance with Subdivision 4 of Division 3 of Part 3 of the Act and regulation 29 of the Regulations..

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 by written notice and the variation will be effective from the point the written notice is issued to the permit holder, 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 –