Agenda of Council - 11 March 2015

Council 7 11 March 2015

10. Planning and Development Services Report

10.1 AMENDMENT NO. 9 TO LOCAL PLANNING SCHEME 21 - INTRODUCTION OF ADDITIONAL USE NO. 80 TO PERMIT OFFICE AND RESIDENTIAL USES - LOT 37 (62) WEST STREET, WEST BUSSELTON - CONSIDERATION FOR INITIATION FOR COMMUNITY CONSULTATION

SUBJECT INDEX:	Town Planning Schemes and Amendments
STRATEGIC OBJECTIVE:	A City of shared, vibrant and well planned places that provide for diverse activity and strengthen our social connections.
BUSINESS UNIT:	Strategic Planning and Development
ACTIVITY UNIT:	Strategic Planning and Development
REPORTING OFFICER:	Senior Strategic Planner - Helen Foulds
AUTHORISING OFFICER:	Director, Planning and Development Services - Paul Needham
VOTING REQUIREMENT:	Simple Majority
ATTACHMENTS:	Attachment a Location Plan ⇩ Attachment b Draft Scheme Amendment Map ⇩

PRÉCIS

The Council is requested to consider initiating for advertising proposed Scheme Amendment No. 9 to Local Planning Scheme 21 (LPS21) to introduce Additional Use No. 80 into Schedule 2 over Lot 37 (No. 62) West Street, West Busselton, that would permit use of the land for offices, grouped dwellings and multiple dwellings. The site is currently occupied by squash courts.

Pursuant to the Scheme, office and residential uses are not normally permitted within the ‘Restricted Business’ zone within which the site is located.

The subject lot is directly adjacent to the Busselton town centre ‘Business’ zoned land and is therefore ideally located for the promotion of mixed use development. As such, the proposed amendment is not considered to result in a detrimental impact on the ‘Restricted Business’ zone and it is recommended that the draft Scheme amendment be initiated to allow public consultation to be undertaken.

BACKGROUND

The proposal comprises a scheme amendment that seeks to introduce additional uses over the property to accommodate potential office and residential use of the land. To achieve the objectives of the amendment it is proposed to place Additional Use No. 80 over the subject land pursuant to Schedule 2 of LPS21, as outlined in the table below –

No.	PARTICULARS OF LAND	LAND USE PERMITTED/SPECIFIED	CONDITIONS
A80	Lot 37 (Vol 1580 & Folio 774) West Street, West Busselton	Office Grouped Dwelling Multiple Dwelling	1. The Additional Uses specified shall be deemed to be “D” uses for the purpose of the Scheme. 2. Grouped Dwelling or Multiple Dwelling shall not be located at the ground floor fronting West Street, the area shall be developed for Office and/or commercial uses as permitted by this zone. No car parking is to be located within the building setback area fronting West Street. 3. Any residential development of the site may be developed up to an R60 density.

No.

PARTICULARS OF LAND

LAND USE PERMITTED/SPECIFIED

CONDITIONS

A80

Lot 37 (Vol 1580 & Folio 774) West Street, West Busselton

Office

Grouped Dwelling

Multiple Dwelling

1. The Additional Uses specified shall be deemed to be “D” uses for the purpose of the Scheme.

2. Grouped Dwelling or Multiple Dwelling shall not be located at the ground floor fronting West Street, the area shall be developed for Office and/or commercial uses as permitted by this zone. No car parking is to be located within the building setback area fronting West Street.

3. Any residential development of the site may be developed up to an R60 density.

The proposed amendment would facilitate the development of the land for the uses ‘office’, ‘grouped dwelling’ and ‘multiple dwelling’, whereby the residential uses could be developed at a density of R60.

Lot 37 is located on the western side of West Street between Bussell Highway and Kent Street within the ‘Restricted Business’ zone. A narrow strip of road reserve runs along the southern boundary of the property, which acts as a service lane for the adjacent commercial properties. The property itself has a total area of 2,790m² and is particularly long, with a narrow frontage to West Street and the bulk of the land located towards the rear.

The subject land has contained the Busselton Squash Courts, which opened in 1979. In 1988 an Amendment to Scheme No. 5 included the additional use ‘Office’ over the land, however, this additional use was then lost when Scheme No. 20 was gazetted, creating the ‘Restricted Business’ zone.

According to the landowner, the squash courts is a marginal financial business and in his opinion it is not the best use for the land. Following finalisation of this amendment the owner is looking at redeveloping the site into a commercial/residential complex, likely to contain multiple dwellings on upper levels.

Land located directly to the east, on the opposite side of West Street, is zoned ‘Business’ and land located to the north of the site is zoned Residential.

STATUTORY ENVIRONMENT

The Planning and Development Act 2005 outlines the relevant considerations when preparing and amending local planning schemes. The relevant provisions of the Act have been taken into account in preparing and processing this amendment.

The City of Busselton Local Planning Scheme No. 21 (the Scheme) identifies the subject land within the ‘Restricted Business’ zone.

The Zoning Table of the Scheme indicates that the uses ‘Office’, ‘Grouped Dwelling’ and ‘Multiple Dwelling’ are uses that are not permitted in the ‘Restricted Business’ zone. However, an Additional Use right afforded by clause 4.7 of the Scheme provides for the use to be considered on a discretionary basis via a Scheme amendment request.

RELEVANT PLANS AND POLICIES

The key policy implications for consideration of the proposed amendment are set out in the Western Australian Planning Commission State Planning Policy No.3 – Urban Growth and Settlement and Liveable Neighbourhoods, the City of Busselton Local Commercial Planning Strategy and the City of Busselton Draft Local Planning Strategy. Each is discussed below under appropriate subheadings.

State Planning Policy No.3 – Urban Growth and Settlement / Liveable Neighbourhoods

One of the main features of the Urban Growth and Settlement Policy is to create sustainable communities with access for all to employment, health, education, shops, leisure and community facilities by locating new development so as to be accessible by foot, bicycle or public transport rather than having to depend on access by car.

The site effectively borders the Busselton town centre and is therefore considered to be in close proximity (walking distance) to all of the above.

This principle is also reinforced within Liveable Neighbourhoods which advances the principle of an urban structure of walkable neighbourhoods clustered to form towns of compatibly mixed uses in order to reduce car dependence for access to employment, retail and community facilities.

City of Busselton Local Commercial Planning Strategy

The Local Commercial Planning Strategy (LCPS) provides the long term strategic land use planning and strategic direction for the development of commercial land within the District.

The LCPS states that “Office uses located near to, but not necessarily within the town centre will generate growth of office employment and create synergies with other businesses in the town centre.”

A recommendation of the LCPS is to provide for an additional use over the adjacent Residential zone to the north of Lot 37, whereby a number of commercial uses considered to compliment the Busselton town centre such as Office, Medical Centre and Shop may be included (Recommendation 3). A recommendation also provides for the introduction of mixed use development within the ‘Business’ zone to facilitate the development of residential use and ultimately provide for an increased vitality within the town centre.

City of Busselton Draft Local Planning Strategy

In addition to the above recommendations provided by the LCPS, the draft Local Planning Strategy (adopted by Council for community consultation on 25 September 2013) seeks to encourage office development within and adjacent to the Busselton City Centre with the following “theme strategy”:

“Significant office development should predominantly be located within or adjacent to the Busselton City Centre, Dunsborough Town Centre or Ambergate North Town Centre.”

FINANCIAL IMPLICATIONS

There are no direct financial implications arising from the recommendations of this report.

STRATEGIC COMMUNITY OBJECTIVES

The proposed amendment is considered to be consistent with the following community objectives of the City’s Strategic Community Plan 2013 –

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

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

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. In this regard, there are no significant risks identified.

CONSULTATION

There is no requirement under the Planning and Development Act 2005 to advertise a proposed scheme amendment prior to it being initiated by the Council. Accordingly, no advertising has occurred to date.

If the Council resolves to initiate the proposed amendment, the relevant amendment documentation would be referred to the Environmental Protection Authority (EPA) for consideration of the need for formal assessment under Part IV of the Environmental Protection Act 1986. Should the EPA resolve that the amendment does not require formal assessment it will be advertised for 42 days in accordance with the Town Planning Regulations 1967.

OFFICER COMMENT

The City has formulated a draft Local Planning Strategy (LPS) that is to inform the Scheme and underpin proposals for future amendments to the Scheme. As part of the overall local planning strategy process, areas within close proximity to the Busselton town centre have been acknowledged as ideal locations for mixed use development, being a mix of commercial and residential uses. These developments encourage vitality of town centres, whilst incorporating limited vehicle use by those residents by the proximity to services. Mixed use developments also encourage housing diversity, affordability and flexibility.

Whilst being located within the ‘Restricted Business’ zone, the subject site with its frontage to West Street is directly adjacent to the Busselton town centre ‘Business’ zoned land and is therefore ideally located for the promotion of mixed use development.

The intent of land within the ‘Restricted Business’ zone is to cater for commercial uses with high floor space requirements and efficient traffic needs that are not suited to town centres. The majority of properties within this zone capitalise on the exposure provided by Bussell Highway. Lot 37, being located off West Street and a long, generally narrow lot, does not benefit from such exposure.

This proposal is considered to have merit as an opportunity to facilitate the appropriate redevelopment of the site, given its proximity to the Busselton town centre and is consistent with the intent as identified for the area in the Local Commercial Planning Strategy to encourage residential development within and near the town centre.

The development of the site at a R60 density is considered to be an outcome consistent with the desired future pattern of development within and surrounding the Busselton town centre. The character of the residential area is likely to change over time due to its medium density coding and some of the attributes will become increasingly urban with some mixed use (office) development.

Consideration was given towards limiting the residential development of the property in some way so as to ensure the availability of land for commercial floor space. Due to the layout of the landholding, the likelihood of a successful commercial tenancy towards the rear is low as exposure to the main traffic thoroughfares would be difficult. It has therefore been considered that a restriction on the residential component to the rear of the property to be unnecessary. However, the area of the property located towards West Street is seen to be the ideal location for commercial activity. As such, a condition is recommended on the development of the land that ground floor development fronting West Street is to be reserved for commercial tenancies (i.e. not residential) and any car parking is to be located behind such development.

Given the above, it is considered that the proposal would be acceptable and would not result in a detrimental impact on the ‘Restricted Business’ zone. As the proposal is considered to be consistent with the relevant planning framework it is therefore recommended that the draft amendment be initiated for consultation purposes.

CONCLUSION

Officers are recommending that proposed Amendment No. 9 to Local Planning Scheme No. 21 be initiated for referral to the EPA and subsequent advertising for public comment.

OPTIONS

Should the Council not support the Officer Recommendation, the Council could consider the following options –

1. Resolve to decline the request to initiate the proposed amendment in its entirety and provide a reason for such a decision.

2. Resolve to initiate the proposed amendment subject to modification(s).

It should be noted that there is no right of appeal against a Council decision not to initiate an amendment.

TIMELINE FOR IMPLEMENTATION OF OFFICER RECOMMENDATION

The implementation of the Officer Recommendation will involve the provision of advice of the Council resolution to the applicant and this will occur within one month of the resolution.

OFFICER RECOMMENDATION

1. That the Council, in pursuance of Part V of the Planning and Development Act 2005, adopts draft Amendment 9 to the City of Busselton Local Planning Scheme 21 for community consultation for the purpose of:

a) Amending Schedule 2 – Additional Uses of the Scheme Text to include the subject land within the Schedule as follows:

No.

PARTICULARS OF LAND

LAND USE PERMITTED / SPECIFIED

CONDITIONS

A80

Lot 37 (Vol 1580 & Folio 774) West Street, West Busselton

Office

Grouped Dwelling

Multiple Dwelling

1. The Additional Uses specified shall be deemed to be “D” uses for the purpose of the Scheme.

3. Any residential development of the site may be developed up to an R60 density.

b) Amending the Scheme Map accordingly.

2. That as the draft Amendment is in the opinion of the Council consistent with Part V of the Act and Regulations made pursuant to the Act, that upon the preparation of the necessary documentation, 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.

Council 17 11 March 2015

13. Finance and Corporate Services Report

13.1 NBN FIXED WIRELESS TELECOMMUNICATIONS TOWER, PORT GEOGRAPHE

SUBJECT INDEX:	Property Leasing
STRATEGIC OBJECTIVE:	A community that is well connected to its neighbours and the broader world.
BUSINESS UNIT:	Corporate Services
ACTIVITY UNIT:	Property and Corporate Compliance
REPORTING OFFICER:	Property and Corporate Compliance Coordinator - Sharon Woodford-Jones
AUTHORISING OFFICER:	Director, Finance and Corporate Services - Matthew Smith
VOTING REQUIREMENT:	Simple Majority
ATTACHMENTS:	Nil

PRÉCIS

In accordance with section 3.58 of the Local Government Act 1995 (LGA) advertising has been undertaken informing the public of the City’s intention to enter into a lease with Crown Castle Australia Pty Ltd for a part of Lot 584 Spinnaker Boulevard, Port Geographe (the Land) for the purpose of a telecommunications compound housing a 30 meter monopole tower.

The purpose of this report is to inform the Council of the outcome of the advertising and recommend that Council enter into a lease with Crown Castle Australia Pty Ltd, the infrastructure partner of the National Broadband Network (NBN) on the terms and conditions outlined in this report.

BACKGROUND

On 10^th December 2014 the Council considered a report on the NBN proposal to install a 30m high monopole for telecommunications in the car park at Lot 584 Spinnaker Boulevard, Port Geographe being land owned freehold by the City. The tower will be located on a raised planted landscape island and replace an existing 12m light pole within the same landscape island and will have a matching light fitted. A secure compound will be constructed at the base of the tower measuring 8m x 5.3m. The tower will have three antennas and power will be provided from a new supply. This tower will be a ‘terminal site’ feeding off the regional fibre hub.

The report sought the endorsement of a valuation of the proposed disposition by way of lease to facilitate advertising in accordance with section 3.58 of the LGA.

Council resolved (C1412/335):

“to declare that it believes that the market value of the proposed lease site, the subject of discussions with Crown Castle Australia Pty Ltd, as shown in the valuation report obtained by the City on 6 January 2014, gives a true indication of the market value of the proposed lease”.

The City advertised, in accordance with section 3.58 of the LGA, its intention to enter into a lease with Crown Castle Australia Pty Ltd for the Land. The submission period for the advertising of the proposal concluded on 9^th January 2015 and resulted in the receipt of one submission from a local resident who considered the proposed rental amount to be too low. The submission also contained recommendations in relation to matters such as future access to the site and the rent uplift should the lessee sublet the area.

STATUTORY ENVIRONMENT

Section 3.58 of the Local Government Act 1995 (LGA) relates to the disposal of property by a local government and disposal is defined to include leasing.

Section 3.58(3) of the LGA enables a local government to dispose of property if, before agreeing to dispose of the property;

it gives local public notice of the proposed disposition:

(i) describing the property concerned; and

(ii) giving details of the proposed disposition; and

(iii) invites submissions to be made to the local government before a date to be specified in the notice

Additionally, section 3.58(4) requires that the details of the proposed disposition include either:

(i) a valuation carried out not more than 6 months before the proposed disposition; or

(ii) as declared by a resolution of the local government on the basis of a valuation carried out more than 6 months before the proposed disposition that the local government believes is a true indication of the value at the time of the proposed disposition.

Accordingly, the proposed disposition was advertised locally detailing the names of the lessee, the proposed rent, the term of the lease and the determination of the market value.

RELEVANT PLANS AND POLICIES

There are no relevant plans or policies.

FINANCIAL IMPLICATIONS

The rent for the land will commence at $10,000 per annum with an annual increase of 2.5%. If the Lessee negotiates with another telecoms operator to locate an additional facility on the tower, the City will be entitled to charge an additional 30% of the annual rental amount for the sublease.

STRATEGIC COMMUNITY OBJECTIVES

The proposal to lease this site is consistent with the City of Busselton Strategic Community Plan 2013, namely Council Objectives 3.1 and 4.2:

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

4.2 A community that is well connected to its neighbours and the broader world, lobbying key partners to enhance our connectivity links including the implementation of the National Broadband Network.

RISK ASSESSMENT

Risk

Controls

Consequence

Likelihood

Risk Level

Not permitting the construction and use of the tower is likely to impact adversely on the ability of the government to roll out the NBN network throughout the region affecting homes and businesses expecting and planning for the high speed connections

Agreement to enter into a lease of this site

Financial – loss of revenue from rent of site - Insignificant

Reputational – city would be seen as blocking progress of the government initiative - Moderate

Almost certain

Likely

Medium

High

CONSULTATION

Prior consultation in relation to the proposal for installation of a monopole tower was undertaken by telecom consultants Daly International and Ericsson who prepared a Stakeholder Identification Checklist and Engagement Strategy and conducted a Community Information Session. This session was attended by 15 people and resulted in majority support for the proposal.

Advertising in accordance with section 3.58 of the Local Government Act was undertaken which generated one submission from a Busselton resident who considered the rent, annual increase and potential uplift for subletting too low. The submission also referred to concerns of access to the site, the location of power infrastructure and the cost of negotiating and preparing a lease. These concerns are addressed in the officer comment section of this report under the sub heading ‘Submission’.

OFFICER COMMENT

The proposed lease negotiated between the parties clearly and appropriately allocates responsibilities and obligations on the Lessee. The principal heads of agreement are outlined as follows:

Rent and additional payment

As mentioned in the financial section of this report the rent will commence at $10,000 per annum and be increased by 2.5% each year. Whilst the annual increase is slightly lower than the Consumer Price Index rates of recent years it is considered reasonable in light of the limited appeal of the site and absence of alternate potential lessees. Factored into this is the potential for additional income of 30% of the annual rent to be charged in the event of a sublease or licence to another telecom provider.

It is proposed that the Lessee will initially pay 10% of the annual rent until it commences construction of the tower. However all indications from the Lessee are that they are keen to commence construction as soon as a lease is signed.

Term of the proposed Lease

The proposed term of the lease is 20 years overall with options to terminate the lease 5, 10 and 15 years after the commencement date, provided notice is served during the periods provided for in the lease.

The Lessee also has the option of terminating the lease at any time prior to commencement of construction of the tower or in the event of construction not occurring within 12 months of the commencement of the lease.

Following construction, the Lessee may terminate the lease at any point, outside of the 5,10 and 15 year anniversaries, with the provision of 12 months prior written notice to the City.

The Lessee may remain in occupation of the premises following expiry of the term on a six monthly periodical tenancy basis, with an option for either party to terminate on the provision of 6 months notice.

Insurance and electricity services

The Lessee is responsible for public liability insurance of no less than $20million and insurance of their equipment. The Lessee must obtain an independent supply of electricity and maintain responsibility for the same.

Removal of apparatus

The Lessee is required to remove all equipment within 3 months of the expiry of the lease and leave the site in a clean and tidy condition to the satisfaction of the City. There is also a requirement for the Lessee to install a light pole at the end of the lease period to replace the light pole being removed to accommodate the tower.

Subletting and assignment

The Lessee may assign the lease to a subsidiary body or holding company of their corporation provided the assignee an incorporated entity.

Prior written consent must be obtained from the City before the Lessee can assign the lease to an unrelated entity and the City cannot unreasonably withhold consent to such an assignment.

The Lessee must obtain the prior written consent of the City should they wish to sublet or licence all or part of the premises to another service provider for the purpose of on-ground equipment. No such consent is required if the subtenant or licensee is NBN Co Ltd.

Other terms and conditions

The proposed lease contains standard terms and conditions normally found in leases of this type as well as conditions and obligations specific to the purpose such as compliance with relevant legislation and adherence to Codes required in connection with emissions and radio frequencies.

Submission

The submission received during the period of advertising the proposed disposition expressed concern over the amount of the rent and other terms such as the location of power infrastructure and access to the site. Officers commented in their report of 10^th December that they believed the rent to be a reasonable outcome, despite being slightly lower than the market valuation, primarily because of the limited pool of parties interested in leasing the site given its location and nature.

The submitter also stated that he considered the additional 30% rent in the event of a sublease insufficient as additional land would be required each time to accommodate extra facilities. The lease provides that the rights of any sub lessee will not extend beyond those granted to the head lessee. The lease does permit the operator to access other parts of the surrounding land but on a needs only basis and for the purpose of installing and/or maintaining equipment only. The 30% additional rent is therefore considered a reasonable outcome.

CONCLUSION

The delivery of the National Broadband Network across the City of Busselton is a positive outcome for the City’s businesses, residents and visitors. NBN Co. has selected Busselton as only one of a small number of locations to trial the roll-out of the fixed wireless network within mainland Australia. The opportunity to secure the required locations on a site by site basis contributes to the overall delivery of the NBN fixed wireless broadband network in rural Busselton. The City owned car park at Spinnaker Boulevard, Port Geographe offers the preferred location of one such tower and the opportunity for the City to secure an annual rent for a period of time.

The use of a relatively small part of the car park in Spinnaker Boulevard to accommodate a new telecommunications tower is not considered to adversely impact on the future use of this area and the income generated will assist with maintenance and asset management of the facilities.

OPTIONS

1. Council may choose not to enter into a lease with this operator.

2. Council may direct officers to enter into a lease of a shorter duration or on different terms.

TIMELINE FOR IMPLEMENTATION OF OFFICER RECOMMENDATION

The proposed lessees wish to commence works on construction of the tower as soon as possible. It is anticipated that the lease will be entered into no later than the end of April 2015.

OFFICER RECOMMENDATION

That the Council:

Enters into a lease with Crown Castle Australia Pty Ltd for a portion of Lot 584, 5 Spinnaker Boulevard, Geographe, Western Australia on terms appropriate to the use of the site with the addition of the following:

a) The overall duration of the lease to be 20 years (subject to the termination dates mentioned below), commencing on the date of execution of the lease;

b) The Lessee to have the following options to terminate the lease

(i) at any time prior to construction of any apparatus or

(ii)on the expiration of 6 months notice of any of the 5^th, 10^th and 15^th anniversaries of the commencement of the lease,

(iii) at any time, having provided the City with no less than 12 months prior notice;

c) The annual rent to be $10,000 plus GST per annum, increased annually by 2.5%;

d) The Lessee to pay an additional 30% of the annual rent (as increased above) in the event of entering into a sub-lease with another entity; and

e) A right for the Lessee to assign the lease to a related entity and to sublet or licence the premises to NBN Co Ltd without the requirement to pay additional rent.

Council 23 11 March 2015

13.2 PROPOSED LEASE OF A PORTION OF LOT 500 RENDEZVOUS ROAD (TIP SITE) TO SITA AUSTRALIA PTY LTD

SUBJECT INDEX:	Agreements/Contracts
STRATEGIC OBJECTIVE:	Infrastructure assets are well maintained and responsibly managed to provide for future generations.
BUSINESS UNIT:	Corporate Services
ACTIVITY UNIT:	Property Services
REPORTING OFFICER:	Property and Corporate Compliance Coordinator - Sharon Woodford-Jones
AUTHORISING OFFICER:	Director, Finance and Corporate Services - Matthew Smith
VOTING REQUIREMENT:	Simple Majority
ATTACHMENTS:	Attachment a Proposed lease area ⇩

PRÉCIS

In accordance with section 3.58 of the Local Government Act 1995 (LGA) advertising has been undertaken informing the public of the City’s intention to enter into a lease with SITA Australia Pty Ltd (SITA) for a portion of the City’s Waste Transfer Station on Lot 500 Rendezvous Road, Busselton (the Site). The area proposed to be leased comprises an area of 3600 square meters and will be used for the sorting of Construction and Demolition Waste (C&D Waste) delivered in skip bins from building sites.

The Site is within Reserve 22884 which is managed by the City under a Management Order. The Management Order does not currently include power to lease. The Department of Lands have indicated in principle support to a change to the Management Order to accommodate the grant of a lease, subject to approval of the lease itself.

The purpose of this report is to inform the Council of the outcome of the advertising; seek an amendment to the existing Management Order to include a power to lease and make recommendations as to the terms and conditions of the lease.

BACKGROUND

In January 2015 a report was presented to Council outlining the negotiations undertaken with SITA Australia in connection with a proposed lease of part of the Rendezvous Road tip site for a term of 5 years with an option for a further 5. The original proposal was to lease approximately 5000-6000 square meters of the tip site. SITA require an area of 3600 square meters and the rent has been apportioned on a square meter basis. A plan showing the proposed site location and access route for the lease to SITA is attached (Attachment 1)

The January 2015 report also recommended that the valuation carried out more than 6 months beforehand was sufficient to meet the requirements of section 3.58 of the LGA.

On 28^th January 2015 Council resolved (C1501/009)

“That the Council:

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

The City advertised, in accordance with section 3.58 of the LGA, its intention to enter into a lease with SITA Australia for the Site. The submission period closed on 20^th February 2015.

An Expression of Interest document has been submitted by a local business interested in leasing a portion of the tip site for the purpose of selling compost and similar materials. The nature of proposed business and location of the operation in the expression of interest is distinct from the proposal outlined in this report.

STATUTORY ENVIRONMENT

Local Government Act 1995

Section 3.58 of the Local Government Act 1995 (LGA) relates to the disposal of property by a local government and disposal is defined to include leasing.

Local Governments are compliant with the LGA if the procedure under section 3.58(3) is followed. This requires the publishing of prior notice to the local public of the proposed disposition which describes the property concerned, gives details of the proposal and invites submissions to be made before a specified date, not less than two weeks after the notice is first given. Any submissions received before the date specified in the notice must be considered and if a decision is made by the council or a committee, the decision and the reasons for it must be recorded in the minutes of the meeting at which the decision was made.

Section 3.58(4) of the LGA requires that the disposition includes either a valuation not more than six months old or a declaration by resolution that a valuation older than 6 months is considered a true indication of the value at the time of the disposition.

Environmental Protection Act 1986

The Department of Environmental Regulation (DER) regulates use of the Site under a Licence issued to the City under the Environmental Protection Regulations 1987. DER have amended the City’s Licence to include recycling of construction and demolition waste at the site and SITA will operate under that Licence.

Contaminated Sites Act 2003

The site falls with an area that has been classified as “possibly contaminated – investigation required” under this Act. The lease therefore provides that SITA obtain a benchmark environmental report of the site as a means by which to assess any further contamination at the end of the term. The lease also makes SITA responsible for any contamination event that occurs on the site during their occupation. Should SITA not respond adequately to any contamination caused by them the lease provides that the City may carry out remediation and SITA must meet the costs.

RELEVANT PLANS AND POLICIES

The proposal to lease the site is compatible with the actions in the City’s Corporate Business Plan relative to the staged relocation of the Busselton Depot and the Waste Strategy. Should a change of approach to the Waste Strategy be required, the proposed lease provides that the City has the option of terminating the lease two years after commencement of the term.

FINANCIAL IMPLICATIONS

The rent to be charged to SITA will initially be $10800 plus GST and will increase by CPI each year. SITA will be responsible for all outgoings on the site and set up costs are their sole responsibility.

There is likely be a reduction in the income from tip fees currently paid by SITA for their use of the Dunsborough Waste Facility. This will be mitigated to some extent by the yearly rent and the expectation that SITA will continue to use the Dunsborough facility for their residual waste. As explained in the January 2015 report to Council there are a number of other factors, such as the availability of clean fill from the SITA operation and airspace savings at landfill, that will relieve the negative financial impact.

The lease requires that SITA provide the City with an unconditional bank guarantee for $60,000 which the City, having followed the default provisions of the lease, can draw on should SITA fail to comply with any of their obligations. Furthermore, SITA must top up this bank guarantee should it be drawn on at any time.

STRATEGIC COMMUNITY OBJECTIVES

The following components of the City of Busselton Strategic Community Plan are relevant to this proposal:

Key Goal Area 2

· Well Planned, Vibrant and Active Places

· Responsible management of public infrastructure assets

Key Goal Area 5

Development and implementation of a strategy for the responsible provision of waste management service

RISK ASSESSMENT

An assessment of the potential implications of implementing the officer recommendation was undertaken and previously and included in the January 2015 report to Council. As the assessment is equally relevant to the proposal and recommendation in this report, it is reproduced here.

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 will 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. Permitted use 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 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 into a lease with SITA was advertised inviting submissions for a period of 14 days ending on 20^th February 2015. In response an Expression of Interest has been submitted by a local business interested in leasing an area within the tip site for the sale of compost and similar materials. The activity proposed in the submission and the area concerned does not impact on the proposal in this report. It is a proposal for a completely different type of operation in a separate location and would therefore need to be considered on its own merits and reconciled with the new transfer station development plan.

City officers have been in contact with the Department of Lands (DoL) concerning a change to the Management Order of the Reserve to include a power to lease. DoL have provided in principle approval to the proposed lease and the inclusion of a power to lease in the Management Order.

OFFICER COMMENT

The proposed lease of this site has been prepared to provide a robust level of indemnity and protection for the City. This is necessary for a number of reasons. The site is potentially contaminated and the penalties and requirements for remediation of contaminated sites can be significant. In addition to which, the proposed lessee, SITA will be operating under a Licence issued to the City by the DER under the Environmental Protection Act which imposes strict requirements and restrictions on the City. The proposed lease therefore requires SITA to comply in every respect with the requirements of this Licence and the governing legislation.

As discussed in the previous report to Council in January, it is recommended that the City include specific terms and conditions in the Lease that relate to the regulatory requirements and the potential contaminated status of the site.

The key provisions and obligations of the lessee in the proposed lease are therefore as follows:

Rent and Bond

As outlined in the financial section of this report the rent will commence at $10,800 per annum plus GST and reviewed annually by C PI.

SITA must also provide the City with an unconditional bank guarantee for $60,000 which the City may draw on without prior notice in the event of a breach of SITA’s obligations under the lease. SITA must top up this guarantee if it is ever called upon by the City.

Term

The initial term of the lease is 5 years with an option, exercisable by the lessee for a further 5. The lease also provides that either party may, on the provision of no less than 6 months’ notice, terminate the lease. This option cannot be exercised until after the second anniversary of the lease commencement date.

The City may allow SITA to remain in occupation of the site on a month to month periodic tenancy basis following termination of the lease with an option for either party to terminate on the provision of one month’s notice.

Services and Access

SITA will be responsible for separately metered services to the site. If the City supplies any services SITA will be responsible for the cost of the same.

Access will be restricted to operating hours of 7am to 3.45pm Monday to Friday to limit the potential noise and disruption to neighbouring property. The City may vary these times, within reason, by providing appropriate notice to SITA.

Environmental compliance

SITA must comply with all applicable environmental laws. The benchmark environmental report required to identify the current level and nature of potential contaminants has been provided to the City for the purpose of measuring any impact SITA have on the site during their occupation.

A final report must be obtained on termination or expiry of the lease which, if it reveals contamination not present at the commencement of SITA’s occupation, must be remediated to the extent necessary to prevent environmental harm.

Licence issued by the Department of Environmental Regulation

SITA will operate under the Licence issued to the City and must not act in any way that would cause or contribute to the City being in in breach of such Licence. The same requirement is applied to any provisions of environmental regulation, and any works approval, order or direction issued by regulators.

The City commits to retaining and renewing its licence to operate during the term of the Lease. Should the City choose not to renew its licence SITA may either terminate the lease on the provision of 30 days’ notice or apply for its own licence.

Indemnities

The lease contains indemnities for the benefit of the City (and the Minister for Lands) in relation to loss or damages incurred as a result of SITA’s acts or omissions.

Assignment/Subletting

SITA may assign the lease subject to satisfying the City that the proposed assignee meets certain criteria such as appropriate financial status and respectability. The consent of the Minister for Lands must also be sought.

Subletting all or part of the premises is not permitted unless there is a change of control over SITA’s share capital and then only with the consent of the City.

Rules

The City will further control the use and operations at the site by the imposition of rules that may change from time to time. The rules will govern such things as operating hours, security and emergency and evacuation procedure.

Construction and Drainage

SITA will be permitted to construct the infrastructure necessary to operate the site for recycling construction and demolition waste. Fencing of the site will be required as appropriate facilities for drainage. SITA will be required to remove such infrastructure at the end of the lease unless the City request that it remain.

CONCLUSION

Whilst there are risks associated with allowing a third party to use and occupy land that is potentially contaminated, the proposed lease imposes robust obligations and indemnities specifically aimed at minimising or eradicating that risk to the extent that is reasonable. The proposed use of the site is compatible with the current purpose and the lease is for a relatively short term that may be terminated on 6 months’ notice, should the City so require, 2 years following commencement.

The proposal also impacts positively on the City’s long term objective to divert certain types of waste materials from landfill and improve the overall performance of waste recycling in the area.

It is therefore recommended that the Council grant a lease of the site to SITA on the terms and conditions outlined in the Officer Recommendation.

OPTIONS

1. Council can resolve to enter into a lease for a shorter duration.

2. Council can elect not to enter into a lease with SITA on any terms.

TIMELINE FOR IMPLEMENTATION OF OFFICER RECOMMENDATION

SITA Australia are keen to commence set up works on the site as soon as possible. It is therefore anticipated that the lease will be entered into on or before 1 May 2015.

OFFICER RECOMMENDATION

That the Council:

1. Requests the Minister for Lands to change to the Management Order for Reserve 22884 consisting of Lot 500 on Deposited Plan 55437 in Certificate of Crown Land Title Volume LR3147 Folio 738 to grant the City power to lease for any term not exceeding 21 years, subject to the approval of the Minister for Lands.

2. Enter into a lease agreement, subject to the Minister for Lands approval, with SITA Australia Pty Ltd ACN 002 902 650 for a portion of Lot 500 in Reserve 22884 shown hatched black on Attachment ‘A’. The terms and conditions of the lease to include the following:

(a) commercial terms appropriate to the use of the land as a site for recycling and sorting construction and demolition waste;

(b) all relevant operating conditions agreed including the hours of operation which can be determined at the discretion of the City;

(d) the term of the lease will be for a period of 5 years with an option for a further 5 year term exercisable by the Lessee;

(e) a requirement for the Lessee to fence the area in a manner suitable to the City with the objective of separating the site from the operations of the City the general public and serve as a barrier for litter;

(f) an obligation in relation to compliance with the terms of a Licence issued from time to time by the Department of Environmental Regulation;

(g) an indemnity for the benefit of the City in relation to any use of the site that could give rise to an action under the Contaminated Sites Act 2003; and

(h) the provision of an unconditional bank guarantee in the sum of $60,000 to secure the performance of the Lessee’s obligations under the lease.

Council 29 11 March 2015

14. Chief Executive Officer's Report

14.1 COUNCILLORS' INFORMATION BULLETIN

SUBJECT INDEX:	Councillors' Information
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 Planning Applications Received 1 to 15 February, 2015 ⇩ Attachment b Planning Applications Determined 1 to 15 February, 2015 ⇩ Attachment c Review of the Emergency Services Acts Newsletter ⇩

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

14.1.1 Thank you letter – The Busselton Art Society

Correspondence has been received from Wendy Wicksteed, Secretary, The Busselton Arts Society:

“On Behalf of the President and members of The Busselton Art Society (Inc), I would like to thank the City of Busselton for the $100.00 grant for the Mayor's Award, judged and awarded by Mayor Ian and Mrs Rhonda Stubbs, to the winning artist Steve Vigors for his painting "Vasse Wetlands".

The 55th Annual Art in the Park was a huge success with many people attending to view the exhibition, and over 70 works of art sold over the three days of the event.

We thank the City of Busselton for your support.”

14.1.2 Thank you letter – Dunsborough Men’s Shed

Correspondence has been from Richard Bailey, Chairman, Dunsborough Men’s Shed to Mayor Ian Stubbs:

“I am very pleased to advise you that the DUNBOROUGH Men ‘shed application for the Community Chest Fund has been successful. We secured the first $15,000 needed to start on preliminaries, slab preparation and ground works.

Your support of this application was essential in us winning the grant and I would like to thank you very much.

The DUNBOROUGH Men’s Shed is a long way away from full completion of the project but we are very excited that the ball is rolling in order to benefit the whole local community.

Once again, thanks a lot for your support in this matter.”

14.1.3 Thank you letter - South West Development Commission Community Chest Grant

Correspondence has been received from Hon. Barry House MLC to Mike Archer:

“Congratulations to the City of BusseIton on recently receiving a South West Development Commission Community Chest grant for $4,740 towards research into expanding your leisure centre.

Your organisation plays a significant and important role in providing for a better community. As one of your Parliamentary Representatives I am proud of your achievements and success in attracting this grant.

Best wishes for your valuable work in the community. I look forward to following your progress with interest and assisting in any matter if required.”

14.1.4 Thank you letter – Aircraft Support

Correspondence has been received from Craig Lapsley, Emergency Management Commissioner, Emergency Management Victoria to Mike Archer:

“I would like to acknowledge and thank you and all of the personnel involved in providing operational and logistical support to Victorian agencies during recent firefighting and aircraft operations in Western Australia.

The support and assistance provided to the C-130Q Hercules air tanker and the Avro RJ-85 airtanker and their crews at Busselton regional airport was commendable.

I believe the past few weeks show how well agencies can work together during fires and other emergencies in that we were able to dispatch crews and aircraft so swiftly and able to work together so effectively.

I have confidence in our continued working relationship if the need arises and once again thank you all.”

14.1.5 Planning Applications

Attachment A is a report detailing all Planning Applications received by the City between 1 and 15 February, 2015. Twenty eight formal applications were received during this period.

Attachment B is a report detailing all Planning Applications determined by the City between 1 and 15 February, 2015. A total of seventeen applications were determined by the City during this period with sixteen approved and one refused.

14.1.6 Thank you letter - Road Safety Audit at Georgiana Molloy Anglican School

Correspondence has been received from Ted Kosicki, Principle, Georgina Molloy Anglican School:

On behalf of the Georgiana Molloy Anglican School Community I would like to thank the City of BusseIton for undertaking a Road Safety Audit in the vicinity of our busy school.

In particular, I would like to commend Justin Smith, your Road Safety Auditor, for such professional documentation and his time in assessing the road safety around our school.

This document was tabled at our last Building and Grounds Sub-Committee meeting. A workshop will be conducted at our March 2015 Building and Grounds sub-committee meeting to address the Road Safety Audit document in detail.

Once again, I thank you for an invaluable document which addresses not only the safety of our students and school community but also the safety of those residing in Provence.

14.1.7 Review of the Emergency Services Acts Newsletter February 2015

The Review of the Emergency Services Acts Newsletter has been received from the Department of Fire and Emergency Services and is provided at attachment C.

OFFICER RECOMMENDATION

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

· 14.1.1 Thank you letter – The Busselton Art Society

· 14.1.2 Thank you letter – Dunsborough Men’s Shed

· 14.1.3 Thank you letter - South West Development Commission Community Chest Grant

· 14.1.4 Thank you letter – Aircraft Support

· 14.1.5 Planning Applications

· 14.1.6 Thank you letter - Road Safety Audit at Georgiana Molloy Anglican School

· 14.1.7 Review of the Emergency Services Acts Newsletter February 2015


	Disclaimer: Every effort has been made to make the information displayed here as accurate as possible. This process is ongoing and the information is therefore ever changing and can not be disseminated as accurate. Care must be taken not to use this information as correct or legally binding. To verify information contact the City of Busselton office.		Produced on: Tuesday, 24 February 2015
			Map Scale: 1:1500

Council		13		11 March 2015
10.1	Attachment b		Draft Scheme Amendment Map

Council		33		11 March 2015
14.1	Attachment a		Planning Applications Received 1 to 15 February, 2015