Please note:  These minutes are yet to be confirmed as a true record of proceedings

CITY OF BUSSELTON

MINUTES FOR THE Council  MEETING HELD ON 28 January 2015

TABLE OF CONTENTS

ITEM NO.                                        SUBJECT                                                                                                                              PAGE NO.

1....... Declaration of Opening and Announcement of Visitors. 3

2....... Attendance. 3

3....... Prayer. 3

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

Response to Previous Questions Taken on Notice. 4

Nil 4

Public Question Time. 4

5....... Announcements Without Discussion.. 4

Announcements by the Presiding Member. 4

The Acting Mayor acknowledged the passing of the Mayor’s Mother. 4

Frank Harding. 4

Announcements by other Members at the invitation of the Presiding Member. 4

6....... Application for Leave of Absence. 4

7....... Petitions and Presentations. 4

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

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

Adoption by Exception Resolution.. 7

10..... Reports of Committee. 9

10.1        Audit Committee - 11/12/2014 - FINANCIAL AUDIT FOR THE YEAR ENDING 30 JUNE 2014 – AUDITOR’S MANAGEMENT REPORT. 9

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

11..... Planning and Development Services Report. 16

11.1        TRANSPORTABLE DWELLINGS AND CONTROLS. 16

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

12..... Engineering and Work Services Report. 39

12.1        VALUATION OF LOT 500 RENDEZVOUS ROAD FOR THE PURPOSE OF A LEASE CONTRACT. 39

13..... Community and Commercial Services Report. 46

Nil

14..... Finance and Corporate Services Report. 47

14.1        FINANCIAL ACTIVITY STATEMENTS – PERIOD ENDING 30 NOVEMBER 2014. 47

15..... Chief Executive Officer's Report. 58

15.1        RESIGNATION OF A COMMITTEE DELEGATE FROM THE BUSSELTON AND SUGITO SISTER CITY ASSOCIATION  COMMITTEE AND APPOINTMENT OF REPLACEMENT MEMBER. 58

15.2        CONSIDERATION OF DISTRICT OR WARD-BASED REPRESENTATION AND METHOD OF ELECTION OF THE MAYOR. 60

15.3        PETITION REQUESTING THAT THE NAUTICAL LADY TOWER BE RETAINED ON BUSSELTON FORESHORE. 67

15.4        COUNCILLORS' INFORMATION BULLETIN.. 72

16..... Motions of which Previous Notice has been Given.. 76

Nil

17..... Confidential Reports. 76

Nil

18..... Public Question Time. 76

19..... Next Meeting Date. 76

20..... Closure. 76

 


Council                                                                                      3                                                                  28 January 2015

MINUTES

 

MINUTES OF A Meeting of the Busselton City Council HELD IN the Council Chambers, Administration Building, Southern Drive, Busselton, ON 28 January 2015 AT 5.30pm.

 

1.               Declaration of Opening and Announcement of Visitors

The Presiding Member open the meeting at 5.30pm.

2.               Attendance

Presiding Member:

Members:

 

Cr Grant Henley (Acting Mayor)

Cr Tom Tuffin

Cr Gordon Bleechmore

Cr Rob Bennett

Cr Coralie Tarbotton

Cr Jenny Green

Cr Terry Best

 

Officers:

 

Mr Mike Archer, Chief Executive Officer

Mr Daniell Abrahamse, Manager, Engineering and Facilities Services

Mr Paul Needham, Director, Planning and Development Services

Mrs Naomi Searle, Director, Community and Commercial Services

Miss Lynley Rich, Manager, Governance Services

Mrs Katie Banks, Administration Officer, Governance

 

Apologies

 

Cr Ian Stubbs

 

Approved Leave of Absence

 

Cr John McCallum

 

Media:

 

“Busselton-Dunsborough Times”

“Busselton-Dunsborough Mail”

 

Public:

 

31

3.               Prayer

The prayer was delivered by Pastor Lee Sykes from the Cornerstone Church of Christ.

4.               Public Question Time

Response to Previous Questions Taken on Notice 

Nil

Public Question Time

 

Nil

5.               Announcements Without Discussion

Announcements by the Presiding Member 

The Acting Mayor acknowledged the passing of the Mayor’s Mother.

The Acting Mayor also acknowledged residents of the district who were recognised in the Australia Day Honours list:

Frank Harding

Shirley Fisher

John Reid

And for fire services – John Pappalia

All awards are well deserved.

 

Also commended were staff and volunteers who conducted sterling service at the Australia Day events held throughout the district. The smooth operation of all events was an indication of the diligent…

 

Steve Andrews was awarded the … for his involvement in the Black Dog Ride and Ron Glencross for his involvement in Land care.

 

Small fries also acknowledged the City for 10 years of support.

Announcements by other Members at the invitation of the Presiding Member

 

Nil

6.               Application for Leave of Absence

Nil

7.               Petitions and Presentations

7.1          Petitions

A petition to build a public access BMX Track in the locality of Dunsborough containing 84 signatures was presented to Council stating:

 

“We, the residents and / or electors of the district request the City of Busselton to build a public access BMX track in the locality of Dunsborough for the children and residents of the Busselton, Dunsborough and surrounding areas.”

 

COUNCIL DECISION

C1501/001              Moved Councillor T Best, seconded Councillor C Tarbotton

 

That the petition be received and referred to the CEO to prepare a report to the Council or a Committee.

CARRIED 7/0

7.2          Presentations by Parties with and Interest

 

Mr Steve O’Brien addressed Council in accordance with Section 6.1 of the Standing

Orders as a party with an interest in Item 11.1. Mr O’Brien, Chairman of the Port Geographe Land Owners Association was in support of the Alternative Motion put forward by Councillor Stubbs.

 

Mr Bill Gilbard O’Brien addressed Council in accordance with Section 6.1 of the Standing

Orders as a party with an interest in Item 15.3. Mr Gilbard, a member of ?? was not in support of the Officer Recommendation.

 

Ms Glenys Cope addressed Council in accordance with Section 6.1 of the Standing

Orders as a party with an interest in Item 15.3. Ms Cope, a member of ?? was not in support of the Officer Recommendation.

 

Mrs Margaret Brown addressed Council in accordance with Section 6.1 of the Standing

Orders as a party with an interest in Item 15.3. Mrs Brown, the person responsible for submitting the petition was not in support of the Officer Recommendation.

 

Ms Susan Walsh addressed Council in accordance with Section 6.1 of the Standing

Orders as a party with an interest in Item 11.2. Ms Walsh, representing an affected landowner, was not in support of the Officer Recommendation.

8.               Disclosure Of Interests

Nil

9.               Confirmation and Receipt Of Minutes 

Previous Council Meetings

9.1             Minutes of the Council  held on 10 December 2014

COUNCIL DECISION

C1501/002              Moved Councillor G Bleechmore, seconded Councillor R Bennett

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

CARRIED 7/0

 

Committee Meetings

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

COUNCIL DECISION

C1501/003              Moved Councillor C Tarbotton, seconded Councillor J Green

 

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 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.  

CARRIED 7/0

 

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

COUNCIL DECISION

C1501/004              Moved Councillor C Tarbotton, seconded Councillor J Green

 

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.

CARRIED 7/0

 

9.4             Minutes of the Audit Committee  held on 11 December

COUNCIL DECISION

C1501/005              Moved Councillor C Tarbotton, seconded Councillor J Green

 

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. 

CARRIED 7/0

 


 

Adoption by Exception Resolution

At this juncture the Mayor advised the meeting that with the exception of the items identified to be withdrawn for discussion, that the remaining reports, including the Committee and Officer Recommendations, will be adopted en bloc.

 

En Bloc Motion

COUNCIL DECISION

C1501/006              Moved Councillor G Bleechmore, seconded Councillor C Tarbotton

 

               That the Committee and Officer Recommendations in relation to the following agenda items be carried en bloc:

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

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

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

14.1        FINANCIAL ACTIVITY STATEMENTS – PERIOD ENDING 30 NOVEMBER 2014

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

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

15.4        COUNCILLORS' INFORMATION BULLETIN  

CARRIED 7/0

en bloc

 


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.

 

COUNCIL DECISION AND COMMITTEE RECOMMENDATION

C1501/007              Moved Councillor G Bleechmore, seconded Councillor C Tarbotton

 

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

CARRIED 7/0

EN BLOC

 


Council                                                                                      13                                                                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.

 

COUNCIL DECISION AND COMMITTEE RECOMMENDATION

C1501/008              Moved Councillor G Bleechmore, seconded Councillor C Tarbotton

 

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.

CARRIED 7/0

EN BLOC

  


Council                                                                                      17                                                                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                                                                                      33                                                                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                                                                                      39                                                                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.


 

COUNCIL DECISION AND OFFICER RECOMMENDATION

C1501/009              Moved Councillor G Bleechmore, seconded Councillor C Tarbotton

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.

CARRIED 7/0

EN BLOC

  


Council                                                                                      45                                                                28 January 2015

13.             Community and Commercial Services Report

Nil


Council                                                                                      47                                                                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.

 


 

COUNCIL DECISION AND OFFICER RECOMMENDATION

 

C1501/010              Moved Councillor G Bleechmore, seconded Councillor C Tarbotton

 

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.

CARRIED 7/0

EN BLOC

 


 

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                                                                   61                                                                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.

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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.

 

Do not delete this line


 

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                                                                                      63                                                                28 January 2015

15.             Chief Executive Officer's Report

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

SUBJECT INDEX:

BASSCA Committee

STRATEGIC OBJECTIVE:

A community that is well connected to its neighbours and the broader world.

BUSINESS UNIT:

Governance Services

ACTIVITY UNIT:

Governanace Support and Inter-Council Relations

REPORTING OFFICER:

Administration Officer – Governance - Katie Banks

AUTHORISING OFFICER:

Chief Executive Officer - Mike Archer

VOTING REQUIREMENT:

Simple Majority

ATTACHMENTS:

Nil

  

PRÉCIS

 

The City is in receipt of correspondence from Councillor Rob Bennett, advising the City of his resignation from the Busselton and Sugito Sister City Association (BASSCA) Committee. This report therefore seeks the appointment of one Councillor as replacement delegate of the BASSCA Committee. Councillor John McCallum is also currently appointed as a delegate to the Committee for the City.

 

 

BACKGROUND

 

Busselton and Sugito entered into a formal sister city arrangement in November 1996 and became BASSCA after the Shire became the City of Busselton. Since the establishment of the association, Elected Members have represented the Shire / City as members of the BASSCA Committee. Councillor Rob Bennett was appointed as a member of the Committee (with Councillor John McCallum) at the Special Meeting of Council held on 21 October 2013 (SC1310/188).

 

STATUTORY ENVIRONMENT

 

It has been customary for the City to officially appoint City delegates as representatives to external Committees in accordance with the general principles of good governance that applies under Part 5 Division 2 (5.2) of the Local Government Act 1995.

 

RELEVANT PLANS AND POLICIES

 

Nil.

 

FINANCIAL IMPLICATIONS

 

Nil.

 

STRATEGIC COMMUNITY OBJECTIVES

 

The Strategic Community Objective of a community that is well connected to its neighbours and the broader world is assisted by the adult and student exchange programs that are offered through the City’s sister city relationship with Sugito.

 

RISK ASSESSMENT

 

Not required for this matter.

CONSULTATION

 

Councillor Rob Bennett has informed the Committee’s Presiding Member, Pauline Vukelic and the City of his resignation from the BASSCA Committee as one of the City’s delegates.

 

OFFICER COMMENT

 

The relationship between Busselton and Sugito has been strong since its inception with regular student, adult and local government exchanges occurring. The City of Busselton contingent that visited Sugito in 2014 returned from Japan with an appreciation of the value of the Sister City relationship. For this reason, the appointment of a replacement member to the Committee is recommended by Officers as it is anticipated that members of Council who have participated in the Local Government Exchange will express interest in being appointed as the replacement member of the BASSCA Committee.

 

CONCLUSION

 

In order to continue the valuable Sister City relationship established between Sugito and Busselton,

it is recommended that a replacement member, being a representative of the City, is appointed as a City delegate to the Committee, following the resignation of Councillor Rob Bennett.

 

OPTIONS

 

The Council may determine that it requires more or less members on the Committee.

 

TIMELINE FOR IMPLEMENTATION OF OFFICER RECOMMENDATION

 

Should the appointments be made, the decision of the Council will be effective immediately.

 

COUNCIL DECISION AND OFFICER RECOMMENDATION

C1501/011              Moved Councillor G Bleechmore, seconded Councillor C Tarbotton

 

That the Council, in acceptance of Councillor Rob Bennett’s resignation, appoints:

 

Councillor Jenny Green as a delegate to the Busselton and Sugito Sister City Association Committee.

CARRIED 7/0

EN BLOC

 


Council                                                                                      65                                                                28 January 2015

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

SUBJECT INDEX:

Localities, Boundaries, Wards and Representation

STRATEGIC OBJECTIVE:

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

BUSINESS UNIT:

Governance Services

ACTIVITY UNIT:

Council and Councillor Services

REPORTING OFFICER:

Manager, Governance Services - Lynley Rich

AUTHORISING OFFICER:

Chief Executive Officer - Mike Archer

VOTING REQUIREMENT:

Simple Majority

ATTACHMENTS:

Attachment a   Proposed three ward scenario for consideration  

  

 

PRÉCIS

 

This report examines matters relating to Councillor representation of the District of the City of Busselton.  These are the matter of District or ward-based representation and the method of election of the Mayor.  A separate report will be presented in February relating to the method of conducting the election, the options being either in-person or postal, for the election to be held on 17 October 2015.

 

For the reasons outlined in this report, Officers recommend that no action be taken on the reintroduction of a ward system for the District and that the Mayor continues to be elected by the Councillors from amongst themselves and not by the electors at large.

 

 

BACKGROUND

 

The matter of ward-based representation and the method of election of the Mayor were last considered by the Council in February 2013 in order for any changes required to be implemented for the October 2013 election.  The Council resolved to maintain District-wide representation and to continue to elect the Mayor as a Council, rather than have the Mayor elected by the people.

 

The decision to abolish the system of wards in the District of Busselton was made by the Council in June 2006 and was implemented for the Council elections that took place in 2007.  The single most important factor to be considered under a system of wards is the ratio of elected members to electors.  Equity must be achieved.  However, it is not open for a ward boundary to just be drawn on a map to split the community to achieve this required equity.  The boundaries must be logical, following physical or topographic features and group communities of interest together.

 

Should the Council seek to proceed to reintroduce a wards system, a three ward proposal could be considered, namely East (4 Councillors), Central (3 Councillors) and West (2 Councillors) that would provide for each ward to have elements of rural, special rural and urban development.

 

STATUTORY ENVIRONMENT

 

Under Clause 6 of Schedule 2.2 of the Local Government Act 1995, a local government with wards must, and a local government without wards may, conduct reviews to ensure that any ward system addresses or continues to address the requirements of Clause 8.  That is:

*             community of interests;

*             physical and topographic features;

*             demographic trends;

*             economic factors; and

*             the ratio of councillors to electors in the various wards.

Clause 5 of Schedule 2.2 provides that a local government can make proposals to the Local Government Advisory Board without undertaking a full review relating to wards, names of wards or numbers of elected members, if in the opinion of the Council the proposal is:

(i)            one of a minor nature;

(ii)           not one about which public submissions need be invited.

An absolute majority decision of the Council is required. 

 

In accordance with Section 2.11(2) of the Act, a local government may change the method of filling the office of mayor or president used by the local government from the election by the council method to the election by the electors method. A special majority decision is required, however, as the City of Busselton does not have more than 11 offices of member of the Council, the power can be exercised by absolute majority as provided for by Section 1.10 of the Act.

 

Any decision to move from the election by electors method to the election by Council method however requires a formal poll of the electors conducted by the Electoral Commissioner and for a majority of electors who vote in that poll to be in favour of the change.

 

Further detail on the statutory processes has been included in the Officer Comment section of the report as the processes specifically relate to each proposal.

 

RELEVANT PLANS AND POLICIES

 

NA.

 

FINANCIAL IMPLICATIONS

 

Should the Council resolve that it seeks to reintroduce a system of wards the work could be undertaken in house and would require an allocation of resources from Governance Services and the GIS team.

 

Should the Council resolve that the Mayor should be elected by the City’s electors, this will result in an increase to the costs of the conduct of the election, potentially in the range of $10,000 to $20,000 extra.

 

STRATEGIC COMMUNITY OBJECTIVES

 

-        A Council that engages broadly and pro-actively with the community.

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

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

 

In accordance with Section 2.10 of the Local Government Act 1995, the main role of a Councillor is to represent the interests of the electors, ratepayers and residents of the district; to provide leadership and guidance to the community in the district; and to facilitate communication between the community and the Council.  Consideration should be given as to whether this representation of the district would be improved by having Councillors elected by electors from different sections (wards) of the District.

 

The Local Government Act requires the broad representation of the District by all Councillors, whether or not elected by a ward or the District, and it is also noted that an elector need not live in a ward to be elected as a Councillor for that ward.

 

In accordance with Section 2.8 of the Local Government Act 1995, the main role of the Mayor is to preside at meetings; to provide leadership and guidance to the community in the district; to carry out civic and ceremonial duties on behalf of the local government; to speak on behalf of the local government; and to liaise with the CEO on the local government’s affairs and the performance of its functions.  Consideration should be given as to whether this role is better performed by an appointee of the electors or an appointee of the Council, once all members have already been elected by the electors. 

 

It is noted that a Mayor elected by a Council from amongst the Councillors has already been elected by the electors as a Councillor.  It is considered that the majority of the role of the Mayor is that as a leader of the group of Councillors and the Council.

 

RISK ASSESSMENT

 

Risk

Controls

Consequence

Likelihood

Risk Level

Perception that certain areas of the District are not represented without a system of wards in place

Continued development of communication mechanisms identifying that all Councillors represent and are accessible to all community members

Minor

Likely

Medium

Perception that the community has no input to the election of the Mayor who receives the highest remuneration of all Councillors

The community has input to the election of that person prior to their election as Mayor

Identify to the community the positive aspects of having the Mayor elected by the Council to reduce this perception

Minor

Likely

Medium

 

CONSULTATION

 

This review was requested by Councillors on the basis that some members of the community continue to request consideration of a wards system and/or a Mayor elected by the electors.  While this report recommends that the Council continues with the current regime, this is on the basis that communications mechanisms, particularly relating to the availability of all Councillors to all ratepayers and residents, continue to be improved and promoted.

 

OFFICER COMMENT

 

Introduction of Wards within the City of Busselton

 

The Shire of Busselton had a system of wards until 2007 when wards were abolished in favour of a district-based system.  While it is acknowledged that there are some good outcomes to be achieved from having wards, it was the view of officers at the time and continues to be so, that the advantages of having a district-based system outweigh these and that the district-based system is more in keeping with the intent of the Local Government Act.  That is, Councillors represent the interest of all electors, ratepayers and residents of the District.

The following table is presented as advantages and disadvantages of a district-based system and could therefore be viewed in reverse for a ward-based system.

 

Advantages

Disadvantages

Councillors represent the interests of all electors, ratepayers and residents of the District and it is therefore appropriate for all electors, ratepayers and residents to be able to have their say in an election

Local government is viewed in the community as being the grass roots level of government and people like to feel that “their” local Councillor is available, accessible and ‘around the corner’

Absolute equity of representation, being the ratio of electors to elected members will always be maintained

Candidates from the more densely populated areas of the district may be perceived to have an advantage at election time with all competing for any positions available

Councillors do a good job of considering the needs of the whole community and should not be made to feel like they have any more of a duty to a smaller section of the City than any other

Electors from the less densely populated areas of the district may perceive that their vote has less of an impact on the outcome of an election

Removes any us and them attitudes that may exist

Elections following extraordinary vacancies are more expensive for the local government

Uncontested elections are less likely to occur.  It is desirable for all positions on the Council to be a competitive process

Can lead to an us and them outcome

As voting is non-compulsory people have a choice on whether to exercise their vote. 

Those who are prepared to do so should be able to have their say on the outcome of all positions

Leads to the most favoured candidates being elected, without the risk of elector apathy seeing a Councillor elected to a certain ward

Having one single ward deals with growth areas. The number of Councillors per ward could perhaps continually change under a ward system.

More likely to be competitive for seats under a district based ward system

 

 

Theoretically, a system of wards for the City of Busselton could be reintroduced.  It is noted that the single most important consideration for the wards system is to achieve elected member to elector equity, that is the ratio of elected member to elector should be as equal as possible and in any event the maximum tolerance is ±10%. 

 

With a growing population, inequity is likely again to become an issue within a short period of time, requiring adjustments to ward boundaries.  This would be particularly so if there were to be a rural ward, as the City’s growth is occurring through urbanisation and intensification of existing urban areas.  Changing ward boundaries can create confusion for electors if there are changes to the ward in which they are located between elections. 

 

Should the Council be of the view that a ward system is appropriate, the most logical proposals to consider could be either an east/west (Busselton/Dunsborough) proposal; an east/west/south (Busselton urban/Dunsborough urban/rural) proposal; or an east/central/west proposal (attached).  As stated, ward boundaries must be logical and follow landmarks or infrastructure and communities of interest must be grouped together.

 

Identified during the last review in 2013, with an east/west system, the logical boundary for the wards would be Bussell Highway between the Margaret River boundary through to just before the Vasse townsite and then following the locality boundary between Kealy, the small beachside locality between Abbey and Siesta Park, and Abbey to the coast.  However, it is considered that this is the most likely to lead to an ‘us’ and ‘them’ scenario based on the two distinct Busselton and Dunsborough communities.

 

Based on the ratio requirement, the number of elected members would then be assigned to each ward.  At that time, if there were, for example, nine Councillors, two west ward Councillors (seven east) would see the west ward slightly under represented, whereas three west (to six east) would see the west ward very over represented. 

 

Hence, if Council was inclined to support the reintroduction of a ward system, officers would favour a recommendation for a three ward system of west, central and east that would ensure consistency by having a mix of Rural, Special Rural and Urban areas in each ward and would be less parochial than a two ward system of East and West.

 

It is believed that some of the desire for a system of wards to be considered, although this view is far from overwhelming from the community, has been to ensure that there is adequate representation from the western section of the district.  At the 2011 election, which was conducted under the district-based system, when six positions on the Council were available two residents of Dunsborough were elected as well as a Councillor who resides in a genuine rural setting.  In 2013, another Dunsborough resident was also elected after one of the Dunsborough-based Councillors resigned.  It would appear that the community took care of the equitable representation issue for itself.

 

Should a system of wards be implemented, the matter would then arise where Councillors would need to be notionally allocated to a ward, or else a complete spill of the Council would be caused.  For example, if Cr Rob Bennett was notionally allocated to a west ward, as a Councillor who continues until 2017, there would also need to be a Councillor whose term expires in 2015 notionally allocated to that ward, logically Cr John McCallum.  A position in that ward would then need to be filled at the October 2015 election.  While relatively straight forward for the west ward, the allocation of other continuing Councillors would use three of the four east ward positions and leave three of three central ward positions available.

 

There are many options available to the Council with relation to a system of wards, however, most if not all of them have been considered and reconsidered many times in the past 10 years.  As a growth local government with a Council that rightly has a strategic focus for the whole district, that has taken the forward step of becoming a City and is now required to undertake some significant long term visioning under a Government that supports less local governments in the State, it is considered that reintroducing a system of wards would be a retrograde step.

 

It is for this reason that it is the recommendation of officers that no action be taken on the reintroduction of a ward system in the City of Busselton.  If, however, the Council was in favour of pursuing a system of wards then direction to officers to prepare a proposal on the basis of general ward boundaries would see the issue considered by the Council again in the relatively near future, noting that they would have to propose a system that complied with the LGAB guidelines and would require a community consultation program.

 

Election of Mayor to be by public vote

 

Officers have recommended that, at least under the current structure of the local government and for the foreseeable future, the best option for the City of Busselton is to have the Mayor elected by the Councillors and not by the electors.  The reasons for this are set out in the table below in the column entitled ‘Matters in Favour of Election by Councillors’.

 

 

 

Matters in Favour of Election by Electors

Matters in Favour of Election by Councillors

Potential for greater visibility with and accountability to the community

A Mayor elected by the Council serves a term of two years before the next Council again has the opportunity to elect the leader

 

A community leader who has the support of the community by being elected by the whole community to that role and therefore a mandate to introduce his/her views

A Mayor elected directly by the electors serves a four year term as Mayor.  Any Councillor on the alternating election cycle who wished to stand for Mayor would then need to go through another public election process after two years

The Mayor is generally the most visible, active member of the Council and is also remunerated at a higher level than the other Councillors.  The community can have a say in who this figurehead is

Historically, many of the dysfunctional Council issues experienced around the State have arisen in Councils where the Mayor has been elected by the electors.  It can lead to a disproportionate sense of power as there is no direct accountability to peers on the Council

A four-year term leading to a probable period of leadership stability

Most of the role of the Mayor is to lead and represent the Council - to be the ‘captain’ of the ‘team’.  The team should elect the captain

Election of Mayor by the Councillors can be on the basis that a Mayor may only be supported by a Councillor vote in excess of 50%

The other Councillors are in the best position to see which Councillor participates, contributes and leads in the best fashion

 

Once a decision is made to have the Mayor elected by electors, it is much more difficult to change the process back if it is deemed that the decision was not a good one.  The change from election by electors to election by Council requires a poll of electors conducted by the Electoral Commission and for a majority to be in favour of the change

 

 

As provided for in the Local Government Act, a local government may change* the method of filling the office of mayor or president used by the local government from the election by the council method to the election by the electors method. * Special majority required.

 

However, if this method was to proceed and at any time the Council felt that it was the wrong decision, to be able to change back a poll of the electors would be required, which would need to be conducted by the Electoral Commission, and a majority of participants in the poll would have to be in favour of the change.

 

CONCLUSION

 

While it is considered worthwhile for the Council to consider these matters on a regular basis and certainly before proceeding with an election, it is considered that the City of Busselton is operating well under a District-representation regime with the Mayor elected from amongst the Councillors.  There is not considered to be anything to be gained from returning to a system of wards.  While this matter is occasionally raised as a desire by small sections of the community, the Council has done a good job of promoting all members’ availability to all areas of the community, with all members committed to representing all areas evidenced by their willingness to attend formal meetings, informal meetings, functions and other gatherings all over the District.  This is also evident by the lack of large numbers of electors at Annual General Meetings.

 

OPTIONS

 

The Council has the option to commence the process of reintroducing ward boundaries by requiring the presentation of a complying proposal (resolution should include general direction on the number of wards and location of ward boundaries), i.eWest, Central and East or West, South (Rural) and East.

 

The Council has the option to change the method of filling the office of Mayor to the election by electors method.

 

TIMELINE FOR IMPLEMENTATION OF OFFICER RECOMMENDATION

 

No specific action is required in order for the Officer Recommendation to be implemented.  However, should the Council not agree with one or both aspects of the recommendation, any changes would have to be instigated immediately in order for these changes to be in place for the 2015 ordinary local government election in October, subject to any ward proposal made being accepted as a complying proposal by the Local Government Advisory Board.

 

OFFICER RECOMMENDATION

 

That the Council:

 

1.    having considered the advantages and disadvantages of district and ward-based systems, takes no action on the reintroduction of a ward system in the City of Busselton;

 

2.    having considered the advantages and disadvantages of the two options for the election of the Mayor, continues to have the Mayor elected by the Councillors of the City of Busselton who have been elected by the electors.

 

 

 


Council                                                                                      71                                                                28 January 2015

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

SUBJECT INDEX:

Busselton Foreshore Redevelopment: Commercial Sites

STRATEGIC OBJECTIVE:

A City where the community has access to quality cultural, recreation, leisure facilities and services.

BUSINESS UNIT:

Major Projects

ACTIVITY UNIT:

Major Projects

REPORTING OFFICER:

Manager, Major Projects - Paul Crewe

Manager, Governance Services - Lynley Rich

AUTHORISING OFFICER:

Chief Executive Officer - Mike Archer

VOTING REQUIREMENT:

Simple Majority

ATTACHMENTS:

Attachment a   Busselton Foreshore Master Plan 01.09.2014  

  

 

PRÉCIS

 

At its meeting on 26 November, 2014, the Council received a petition containing 2651 signatures requesting that the Nautical Lady tower be saved.  The petition stated “We, the undersigned, request that the Nautical Lady tower is retained on Busselton Foreshore.  It is the only vantage point where the magnificent, spectacular views of Busselton, the jetty and Geographe Bay can be seen and photographed.  It could be made into a very appropriate tourist attraction.” 

 

As a result of this, the Council resolved that the petition be received and referred to the CEO to prepare a report to the Council.  While acknowledging that there is a level of desire within the community and more broadly for the Nautical Lady to be retained, this report seeks to reaffirm the Council’s position for the removal of the tower in accordance with the Council endorsed Busselton Foreshore Master Plan.

 

 

BACKGROUND

 

The Busselton Foreshore Master Plan (BFMP) was well informed through a very thorough community consultation process and most versions of the Master Plan have identified the removal of the Nautical Lady tower to enable the widening of the Foreshore Promenade and public open space in this area, opening up the Jetty abutment for pedestrian and traffic (rail and emergency vehicle) flow.

 

A key principle of the BFMP was to enable ‘viewing corridors’ which afforded a view from locations on the foreshore all the way through to the beach. The Nautical Lady sits within one of these corridors, inhibiting a view from the main central plaza area through to the Jetty abutment.

 

The BFMP developed by the Busselton Foreshore Working Group showed the removal of this building from the foreshore. It was discussed that not only does the older style building not fit in with the architectural styling of the revitalised Busselton Foreshore; historically the built form Light House location has always been at Cape Naturaliste, and not in this area.

 

Council has progressively worked towards identifying the highest and best use for the prime foreshore location currently occupied by the Nautical Lady tower.  When the Nautical Lady site was offered through an expression of interest process, respondents who explored development options that incorporated the existing tower decided not to progress with any redevelopment due to the costs associated with the required structural modification to adhere to the statutory requirement to provide universal access to the top of the tower as well as the conversion for a “fit for purpose” alternative use.

 

More recently it has been suggested by members of the public that several smaller organisations could make use of the building, such as Busselton Jetty Environment and Conservation Association (BJECA) and the Geographe Bay Tourism Association (GBTA).  Both organisations are in the process or have signed MOUs in favour of being housed in a ‘purpose built’ Railway House development.

 

Prior to the Council purchasing the Nautical Lady building, there were issues raised with its deterioration and structural integrity.  It is expected that the ongoing maintenance costs for this building would be high and far exceed the overall value of the asset.

 

In addition to this, the Nautical Lady building does not meet the Building Code of Australia (BCA) requirements for public buildings and universal access. The City has been advised that given the dimensions of the top of the tower and width required for a public lift, a separate structure independent of the tower would need to be built alongside the tower to give access to the top of the building. This structure would further increase the footprint of this building on the foreshore promenade/jetty abutment area and included with the ongoing maintenance costs, the estimated costs for this construction were not seen as best value for money for the City or its ratepayers.

 

STATUTORY ENVIRONMENT

 

The Busselton Foreshore Master Plan and associated Development Guide Plan are adopted by the Council and the Western Australian Planning Commission to guide future planning and development of the entire Busselton Foreshore.

 

The National Construction Code Series, 2014 Vol. 5. Building Codes of Australia, Class 2 to Class 9 Buildings is the statutory instrument that requires universal access be provided in line with any change in the use or classification of a building.

 

RELEVANT PLANS AND POLICIES

 

The Busselton Foreshore Master Plan and Development Guide Plan.

 

The modified Busselton Foreshore Master Plan was adopted by the Council on 9 July 2014.  The modified plan depicts a rationalised open space area on the foreshore with cafe space setback from the foreshore and consolidated at the corner of Stanley Street and the proposed east-west spine road.  

 

The Busselton Foreshore Development Guide Plan (DGP) provides the statutory framework for development on the foreshore.  It was adopted by the City of Busselton on 9 July 2014 and endorsed by the Western Australian Planning Commission on 11 November 2014. 

 

The DGP depicts the site of the Nautical Lady as undeveloped space within the Busselton Jetty Precinct. The purpose of the site will be to facilitate the provision of high quality open space and amenities to complement activities on the foreshore. 

 

As stated in the Busselton Foreshore Development Guide Plan, “the Busselton Jetty precinct is a key movement corridor to Marine Terrace and an extension of the original railway line along Stanley Street into the town centre. It will contain interpretive and restaurant functions including ‘Railway House’, an interpretive centre for the Busselton Jetty, the local historic rail network and the south west timber industry. This precinct will provide a pedestrian focused environment, maximum activation of spaces, and retain views of the foreshore and jetty.”

 

 

 

FINANCIAL IMPLICATIONS

 

The cost of removal of the Nautical Lady tower is included within the existing 2014-15 budget.

A decision to retain the Nautical Lady for the purpose requested, to provide a vantage point for views and photography, will require the provision of universal access to the top of the tower.  This work has not yet been accurately costed, but the costs would be significant.  Feasibility studies, structural reports, building surveyor reports, architectural fees and an asset management plan would also be required.

 

STRATEGIC COMMUNITY OBJECTIVES

 

-        A City where the community has access to quality cultural, recreation and leisure facilities and services.

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

 

RISK ASSESSMENT

 

Risk

Controls

Consequence

Likelihood

Risk Level

Community perception that the Council has not heard the request put forward in the petition if the removal proceeds

Use various communication  mediums to explain the Council’s decision

Minor

Likely

Medium

Significant costs associated with the provision of universal access should the tower be retained

Only retain should there be a commercial appetite for the location and a willingness by the developer to pay for the modifications

Minor

Likely

Medium

Other commercial opportunities proposed may not proceed as the proponents were of the understanding that the tower was to be removed. This would result in a loss of potential revenue to the Jetty Maintenance Fund.

Negotiation with the proponents to ascertain alternatives

Moderate

Likely

High

 

CONSULTATION

 

This report has been presented as a result of a petition being received that contained 2651 signatures.  In addition the Council received approximately 10 submissions as a result of various media exposure requesting the retention of the tower.

 

 

 

OFFICER COMMENT

 

In November 2014 the Council received a petition requesting that the Nautical Lady tower be saved and this report is presented in response to the Council’s decision at that time.  When the petition was presented the petitioner identified that it contained 2651 signatures, 43% of which were from Busselton, with the remaining 57% being variously from the South West, Perth, elsewhere in WA, Australia and overseas.  It is usual for the Council to require petitions to be made by electors of the District, however, in good faith the Council still accepted the petition as containing 2651 signatures.

 

The adopted plans for the Busselton Foreshore, being the Master Plan and Development Guide Plan identify the removal of the Nautical Lady and the provision of commercial sites further back towards the proposed spine road.  Significant planning has gone into the redevelopment of the Busselton Foreshore, all of which has been the subject of significant consultation with the community.  Several key decisions have seen the Council in a position where it has on its current budget the funds required to remove the Nautical Lady tower. 

 

Contributing to this have been the adoption of the Busselton Foreshore Master Plan and Development Guide Plan, the buy-out of the long-term Nautical Lady lease and the decision to proceed with the proposed microbrewery and family restaurant.  Additionally the City is currently working towards the eastern foreshore redevelopment and the relocation of the GBTA along with BJECA and its train housing into the proposed Railway House. 

 

It is important to note that the City did test the appetite for the Nautical Lady tower to be redeveloped by a commercial entity.  It is understood that the major reason for the lack of commercial interest in the site is the costly statutory requirement to provide universal access to the top of the tower.  Preliminary site investigations by City officers would indicate that the required lift would only be able to be accommodated as an exterior addition to the building, further adversely affecting the aesthetic appearance of the building.  Given the quality of the western foreshore redevelopment and the like plans for the eastern and central redevelopment of the foreshore, it is considered that the Nautical Lady tower is already aesthetically out of place, with many people stating it to be “an eyesore”.

 

Consideration needs to be also given to the localised community support or lack thereof for the presented petition.  Of the 2651 signatures, around 1140 (or only 43%) were received from within the Busselton district. With an elector base of 23,158 people, this represents a potential 22,018 electors throughout the district whose views have not been accounted for with regard to the renovation and retention of the tower.

 

Further, prior to being disbanded, the Busselton Foreshore Working Group supported the removal of the tower and the potential development of commercial sites that have been identified as those further back towards the proposed spine road.  The lease payments for the commercial sites are required to be directed into the Jetty Maintenance Fund thus ensuring the sustainability of the Busselton Jetty. Conversely, retention of the Nautical Lady tower would present an ongoing cost to ratepayers.

 

The request from the petitioners identified the desirability of the tower as a vantage point for views and photography as the reason for the request.  It is the view of officers that these views can be readily replicated by several of the commercial developments eventually planned for the redeveloped Busselton Foreshore in a manner more suitable for a premium tourist destination.

 

 

 

 

CONCLUSION

 

For the reasons outlined in this report, it is recommended that the Council proceeds with the proposed removal of the Nautical Lady tower and continues with the redevelopment of the Busselton Foreshore in accordance with the adopted Master Plan and Development Guide Plan.

 

OPTIONS

 

1.      The Council could resolve to advertise the site for expressions of interest again to determine if there is any commercial appetite to develop the location and fund the required universal access improvements to meet statutory requirements.

2.      The Council could resolve to retain the Nautical Lady Tower and identify changes to its Long-term Financial Plan and future budgets to meet the costs associated with maintaining the tower on site.

 

TIMELINE FOR IMPLEMENTATION OF OFFICER RECOMMENDATION

 

The removal of the Nautical Lady tower is budgeted to occur this financial year.  Subject to the relocation of the GBTA from the premises this could still occur, or the works may be required to be carried over into the 2015-16 financial year, when the GBTA is relocated to Railway House.

 

COUNCIL DECISION AND OFFICER RECOMMENDATION

C1501/012              Moved Councillor G Bleechmore, seconded Councillor C Tarbotton

 

That the Council:

 

1.    having considered the petition, reaffirms its decision to remove the Nautical Lady tower on the basis that it does not reflect the character and amenity that the City is endeavouring to achieve with the redevelopment of the Busselton Foreshore in accordance with the adopted Busselton Foreshore Master Plan and the subsequent Development Guide Plan recently approved by the Western Australian Planning Commission.

CARRIED 7/0

EN BLOC

 


Council                                                                                      77                                                                28 January 2015

15.4           COUNCILLORS' INFORMATION BULLETIN

SUBJECT INDEX:

Executive Services

STRATEGIC OBJECTIVE:

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

BUSINESS UNIT:

Executive Services

ACTIVITY UNIT:

Executive Services

REPORTING OFFICER:

Reporting Officers - Various .

AUTHORISING OFFICER:

Chief Executive Officer - Mike Archer

VOTING REQUIREMENT:

Simple Majority

ATTACHMENTS:

Attachment a   Circular 33-2014

Attachment b    Memorandum of understanding

Attachment c    Circular 34-2014

Attachment d   Circular M04-2014

Attachment e    Planning Applications Received 16 November to 31 December, 2014

Attachment f    Planning Applications Determined Between 16 November to 31 December, 2014

Attachment g   Status of State Administrative Tribunal Appeals as at 31 December, 2014

Attachment h   Summary of Management and Control of Dogs Within the City 1 October to 31 December, 2014  

  

PRÉCIS

 

This report provides an overview of a range of information that is considered appropriate to be formally presented to the Council for its receipt and noting.  The information is provided in order to ensure that each Councillor, and the Council, is being kept fully informed, while also acknowledging that these are matters that will also be of interest to the community.

 

Any matter that is raised in this report as a result of incoming correspondence is to be dealt with as normal business correspondence, but is presented in this bulletin for the information of the Council and the community.

 

 

INFORMATION BULLETIN

15.4.1    Report of the Australian Business Registrar 2013-14

 

A copy of the Report of the Australian Business Registrar 2013-14 has been received. The report encompasses Australian Business Register (ABR), Standard Business Reporting (SBR) and AUSkey as together these elements provide a national infrastructure enabling business to securely and simply interact with government. A copy of the report is available to be viewed in the Councillors’ office.

15.4.2    2013/2014 Annual Report of the Marine Parks and Reserves Authority

 

A copy of the 2013/2014 Annual Report of the Marine Parks and Reserves Authority (MPRA) has been received. The Annual Report summarises the activities of the Authority during the 2013/2014 financial year and also contains a summary of the Authority’s membership, role and functions. A copy of the report is available to be viewed in the Councilors’ office.

15.4.3    RAC Risky Roads Survey Results 2014 – Regional Local Government Areas

 

A copy of the Risky Roads Survey 2014 results has been received. The campaign received more than 5000 nominations from Western Australian Motorists and road users and aims to increase public awareness around one of the key priorities for the RAC – road safety.

Following an assessment of the results, the RAC will work with the State government and relevant road authorities to identify and help deliver safer roads for the WA community.

 

The assessment focuses on the most nominated roads, as well as lower profile roads that pose a significant risk to the local community.

 

A copy of the survey is available to be viewed in the Councilors’ office.

15.4.4    Thank you email - 21/1415 Sponsorship for Seniors Variety Day

 

Correspondence has been received from Trish Flower, DDCC Management Committee:

 

“On behalf of the organising committee of the ‘Have a Go’ Seniors Week event, and the Management Committee of the Dunsborough and Districts Progress Association, I am writing to thank you for the City’s contribution of $500 towards the running costs for this event.

 

I also wanted to let you know how successful our event was, attracting more than 70 people to the club for a variety of activities, morning tea and lunch. Participants were club members and non- members, from Dunsborough and Busselton. The spirit of the day was very much ‘Have a Go’, and ‘try something new’, with the majority participating in a new sport or activity. Despite not receiving additional funding from the Department of Communities, we managed to host a fabulous day.

 

We offered croquet, carpet bowls, tennis, golf, bike riding, trail walking, mah-jong, table games, and table tennis. The atmosphere of the day was fun and interactive.

 

Feedback indicated that most were keen for the event to run again; with some requesting we hold it monthly! We certainly aim for it to be an annual event.

 

 Thanks again for your support,

15.4.5    Circular No 33-2014 Global Amendment of Local Laws – Assistance Animals

 

Circular No 33-2014 Global Amendment of Local Laws – Assistance Animals from the Director General, Department of Local Government and Communities, Jennifer Mathews is provided at Attachment A.

15.4.6    Memorandum of understanding 

 

A Memorandum of understanding for the implementation of the Fish Kill Mitigation Strategy and Response Plan for the Vasse Wonnerup Wetlands between the Department of Water, Water Corporation, Department of Parks and Wildlife, Department of Fisheries and City of Busselton is provided at Attachment B.

15.4.7    Circular No 34-2014 Amendments to the Local Government (Constitution) Regulations 1998

 

Circular No 34-2014 Amendments to the Local Government (Constitution) Regulations 1998 from the Director General, Department of Local Government and Communities, Jennifer Mathews is provided at Attachment C.

15.4.8    Circular No M04-2014 Governor’s Orders Published in the Government Gazette

 

Circular No M04-2014 Governor’s Orders Published in the Government Gazette from the Minister for Local Government; Community Services; Seniors and Volunteering; Youth, Hon Tony Simpson MLA is provided at Attachment D.

15.4.9    Letter of Thanks – Sponsorship Dunsborough Art Society – Cape Artists’ Art from the Bay Annual Exhibition January 2015

 

Correspondence has been received from Laurel Ashley, President, Dunsborough Art Society:

 

“On behalf of all members of Dunsborough Art Society I would like to thank you for being a sponsor of our Cape Artists Annual Exhibition that will be held in the Yallingup Hall Friday 2 January to Sunday 11 January 2015 inclusive.”

15.4.10  Planning & Development Services Statistics

 

Planning Applications

 

Attachment E is a report detailing all Planning Applications received by the City between 16 November, 2014 and 31 December, 2014.  Eighty four formal applications were received during this period.

 

Attachment F is a report detailing all Planning Applications determined by the City between 16 November, 2014 and 31 December, 2014.  A total of ninety three applications (including subdivision referrals) were determined by the City during this period with all approved / supported.

 

Summary of 2014 Planning Applications

 

Development Applications:  550 Development Applications were received for 2014 which compares with 467 (excluding Holiday Homes) received in 2013.  This would indicate an increase of development activity within the City.

 

Subdivision Applications:  66 subdivision and strata applications, proposing 769 lots, were received in 2014.  This compares to 71 applications, for 1155 Lots, received in 2013. Interestingly, the number of lots cleared in 2014 was 466, compared to 89 cleared lots in 2013.  This would seem to indicate a strengthening of market confidence by developers.

15.4.11  State Administrative Tribunal (SAT) Appeals

 

Attachment G is a list showing the current status of State Administrative Tribunal Appeals involving the City of Busselton as at 31 December, 2014

15.4.12  Dog Management and Control

 

Attachment H is a summary of Ranger and Emergency Services staff actions relating to the management and control of dogs in the community for the term 1 October to 31 December, 2014.

 

During this term 50 dogs were impounded of which 41 dogs (82%) were reunited with their owner. A further 9 dogs were successfully rehomed through the community volunteer animal rescue groups Saving Animals from Euthanasia (SAFE) and K9 Rescue Group South West.

 

As of the last date in the reporting period there were no dogs in the animal care facility waiting to be claimed. 

 

During this term there were three prosecutions instigated for dog attacks.


 

 

COUNCIL DECISION AND OFFICER RECOMMENDATION

C1501/013              Moved Councillor G Bleechmore, seconded Councillor C Tarbotton

 

That the items from the Councillors’ Information Bulletin be noted:

·    15.4.1              Report of the Australian Business Registrar 2013-14

·    15.4.2              2013/2014 Annual Report of the Marine Parks and Reserves Authority

·    15.4.3              RAC Risky Roads Survey Results 2014 – Regional Local Government Areas

·    15.4.4              Thank you email - 21/1415 Sponsorship for Seniors Variety Day

·    15.4.5              Circular No 33-2014 Global Amendment of Local Laws – Assistance Animals

·    15.4.6              Memorandum of understanding

·    15.4.7              Circular No 34-2014 Amendments to the Local Government (Constitution)                      Regulations 1998

·    15.4.8              Circular No M04-2014 Governor’s Orders Published in the Government                            Gazette

·    15.4.9              Letter of Thanks – Sponsorship Dunsborough Art Society – Cape Artists’ Art                     from the Bay Annual Exhibition January 2015

·    15.4.10           Planning & Development Services Statistics

·    15.4.11           State Administrative Tribunal (SAT) Appeals

·    15.4.12           Dog Management and Control

CARRIED 7/0

EN BLOC

  


Council                                                                                      81                                                                28 January 2015

16.             Motions of which Previous Notice has been Given

Nil  

17.             Confidential Reports  

Nil

18.             Public Question Time

Lucy Smales – NSN Duns dog action group

7.2 para 2 - 26 Nov Council minutes

And s6.10.2.c – prese by parties with an interest

 

Rob Griffiths

 

 

 

 

 

 

 

 

19.             Next Meeting Date

Wednesday, 11 February 2015

20.             Closure

The meeting closed at

 

THESE MINUTES CONSISTING OF PAGES 1 TO 76 WERE CONFIRMED AS A TRUE AND CORRECT RECORD ON Wednesday, 11 February 2015.

 

 

DATE:_________________              PRESIDING MEMBER:             _________________________