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

CITY OF BUSSELTON

MINUTES FOR THE Policy and Legislation Committee MEETING HELD ON 27 May 2020

TABLE OF CONTENTS

ITEM NO.                                        SUBJECT                                                                                                                              PAGE NO.

1....... Declaration of Opening and Announcement of Visitors. 2

2....... Attendance. 2

3....... Public Question Time. 2

4....... Disclosure Of Interests. 2

5....... Confirmation and Receipt Of Minutes. 3

5.1          Minutes of the Policy and Legislation Committee Meeting held 29 April 2020. 3

6....... Reports. 4

6.1          RESCISSION OF COUNCIL POLICY 074: MARKETS. 4

6.2          AMENDMENT TO COUNCIL POLICY: COMPLIANCE. 13

6.3          AMENDMENT TO COUNCIL POLICY AND DELEGATION: PURCHASING.. 21

6.4          DELEGATION OF POWER TO DISPOSE OF PROPERTY AND LEASE AND LICENCE PREMISES. 50

6.5          RESCISSION OF COUNCIL POLICY: 025 BUILDING CONTROL - STANDARD OF SITE CLASSIFICATION FOR SUBDIVISIONS. 60

7....... General Discussion Items. 66

8....... Next Meeting Date. 66

9....... Closure. 66

 


Policy and Legislation Committee                                  3                                                                         27 May 2020

MINUTES

 

MINUTES OF Policy and Legislation Committee HELD IN the Committee Room, Administration Building, Southern Drive, Busselton, ON 27 May 2020 AT 10.30am.

 

1.               Declaration of Opening and Announcement of Visitors

The Presiding Member opened the meeting at 10.34am.

 

2.               Attendance 

Presiding Member:

 

Members:

 

Cr Ross Paine

 

Cr Grant Henley

Cr Kelly Hick

Cr Lyndon Miles

Cr Kate Cox

 

Officers:

 

Mr Tony Nottle, Director, Finance and Corporate Services

Mrs Naomi Searle, Director, Community and Commercial Services

Ms Sarah Pierson, Manager, Governance and Corporate Services

Mr Daniell Abrahamse, Manager, Engineering and Technical Services

Mr Martyn Cavanagh, Manager, Legal and Property Services

Mr Ronald Wildschut, Development Control Coordinator

Ms Melissa Egan, Governance Officer

 

Apologies:

 

Nil

 

3.               Public Question Time  

Nil

 

4.               Disclosure Of Interests

Nil


 

5.               Confirmation and Receipt Of Minutes

5.1             Minutes of the Policy and Legislation Committee Meeting held 29 April 2020

COMMITTEE DECISION

PL2005/308            Moved Councillor G Henley, seconded Councillor K Cox

 

That the Minutes of the Policy and Legislation Committee Meeting held 29 April 2020 be confirmed as true and correct.

CARRIED 5/0

  


Policy and Legislation Committee                                  5                                                                         27 May 2020

6.               Reports

6.1             RESCISSION OF COUNCIL POLICY 074: MARKETS

STRATEGIC GOAL

6. LEADERSHIP Visionary, collaborative, accountable

STRATEGIC OBJECTIVE

6.1 Governance systems, process and practices are responsible, ethical and transparent.

SUBJECT INDEX

Council Policies

BUSINESS UNIT

Commercial Services

REPORTING OFFICER

Manager, Commercial Services - Jennifer May

AUTHORISING OFFICER

Director, Community and Commercial Services - Naomi Searle

NATURE OF DECISION

Executive: substantial direction setting, including adopting strategies, plans and policies (excluding local planning policies), tenders, setting and amending budgets, funding, donations and sponsorships, reviewing committee recommendations

VOTING REQUIREMENT

Simple Majority

ATTACHMENTS

Attachment a   Current Council Policy 074: Markets

Attachment b    Council Policy Events  

 

OFFICER RECOMMENDATION

 

That the Council rescinds Council Policy 074: Markets (Attachment A), effective immediately.

 

COMMITTEE RECOMMENDATION

PL2005/309            Moved Councillor G Henley, seconded Councillor L Miles

 

That this item be deferred to the next Policy and Legislation Committee meeting to allow officers to consider the addition of relevant detail from the Council Policy 074: Markets into the Council Policy Events.

CARRIED 5/0

 

Reasons:              The Committee felt it was important that Council retained some strategic direction and oversight in relation to the operation of markets, with the deferral enabling officers to further consider the content of the Markets Policy and the addition of any relevant detail from the Markets Policy into the Events Policy.

 

EXECUTIVE SUMMARY

This report recommends the rescission of Council policy 074: Markets (the Policy) (Attachment A), with the Policy having been reviewed as part of the City’s overall review of its Council policies. It is recommended the Policy be rescinded, and its contents and objectives carried over into an Operational Practice. This will allow the City to respond more readily to changes in market locations or respond to any new market requests, particularly as we enter into a COVID-19 recovery phase.

 

BACKGROUND

The objective of the Policy is to ensure that markets held on City owned or managed land (City Land) do not adversely impact on local business and are successful, sustainable and appropriately accessible to the public. The Policy outlines market locations and frequencies and sets out the requirement for markets to be approved under the City’s Events Policy and event approval process. 

 


 

The Policy was reviewed in 2013, in response to an increase in the number of requests to hold new markets in various locations across the district. The Policy was again reviewed in November 2014 with minor amendments made to market locations in the district and to provide for alternative venues for markets in Busselton.   

 

The Council policy ‘Events’ (Attachment B) was reviewed, amended and endorsed by Council at its meeting on 12 February 2020 (C2002/034). While, as per the Policy, markets have always been processed as an ‘event’, as part of the review, the definition of “Event” was expanded to expressly include “Markets” in the scope of the policy. Outside of this, however, no specific references / limitations were incorporated into the Events policy. 

OFFICER COMMENT

Markets are well established and function successfully within the City of Busselton. Given that, officers consider that the objectives of the Policy are capable of being managed administratively under the direction of the CEO. The contents of the Policy can be translated to an Operational Practice which can be adjusted as required to meet changing demands and circumstances. This ability to more readily respond is particularly important as we enter a COVID-19 recovery phase, with well managed outdoor markets a possible sustainable alternative to traditional retail.    

 

In the event that Council would prefer to maintain high level strategic guidance in relation to markets, officers would recommend that an additional clause is added to the Events Council policy, outlining maximum market numbers / locations. Officers do not believe a stand-alone Council policy in relation to markets is necessary.

Statutory Environment

In accordance with section 2.7(2)(b) of the Act, it is the role of the Council to determine the local government’s policies. The Council does this on recommendation of a committee it has established in accordance with section 5.8 of the Act.

Relevant Plans and Policies

The City has a policy framework which was developed and endorsed by Council in response to the recommendations of the Governance Services Review carried out in 2017. The framework sets out the intent of Council policies, as opposed to operational documents such as staff management practices and operational practices.

 

The Council policy ‘Events’ is relevant as outlined.

Financial Implications

There are no financial implications associated with the officer recommendation.

Stakeholder Consultation

No external stakeholder consultation was required or undertaken in relation to this matter.

Risk Assessment

An assessment of the potential implications of implementing the officer recommendation has been undertaken using the City’s risk management framework, with risks assessed taking into account any controls already in place. No risks of a medium or greater level have been identified.


 

Options

As an alternative to the proposed recommendation, the Council could:

1.    Choose to rescind the Policy and direct the CEO to incorporate maximum market numbers / locations into the Events Council policy, or

2.    Choose to retain the Policy and request it be translated into the new policy framework.

 

CONCLUSION

As the contents and objectives of the Policy are now contained in the recently endorsed Council policy Events and associated Operational Practices, it is recommended the Policy be rescinded.

TIMELINE FOR IMPLEMENTATION OF OFFICER RECOMMENDATION

The Policy will be rescinded and removed from the website within one week of Council’s endorsement.


Policy and Legislation Committee

7

27 May 2020

6.1

Attachment a

Current Council Policy 074: Markets

 


Policy and Legislation Committee

9

27 May 2020

6.1

Attachment b

Council Policy Events

 


 


 


 


 


Policy and Legislation Committee                                  14                                                                      27 May 2020

6.2             AMENDMENT TO COUNCIL POLICY: COMPLIANCE

STRATEGIC GOAL

6. LEADERSHIP Visionary, collaborative, accountable

STRATEGIC OBJECTIVE

6.1 Governance systems, process and practices are responsible, ethical and transparent.

SUBJECT INDEX

Council Policies

BUSINESS UNIT

Legal and Property Services

REPORTING OFFICER

Manager Legal and Property Services - Martyn Cavanagh

AUTHORISING OFFICER

Director Finance and Corporate Services - Tony Nottle

NATURE OF DECISION

Executive: substantial direction setting, including adopting strategies, plans and policies (excluding local planning policies), tenders, setting and amending budgets, funding, donations and sponsorships, reviewing committee recommendations

VOTING REQUIREMENT

Simple Majority

ATTACHMENTS

Attachment a   Compliance Policy (current)

Attachment b    Compliance Policy (proposed)  

 

10:55am:             At this time, Mrs Searle left the meeting.

 

COMMITTEE RECOMMENDATION AND OFFICER RECOMMENDATION

PL2005/310            Moved Councillor K Hick, seconded Councillor K Cox

 

That the Council agree to amend the Compliance Policy by adopting the amended Compliance Policy at Attachment B.

CARRIED 5/0

 

EXECUTIVE SUMMARY

Council’s Compliance Policy that was adopted in September 2018 (the Policy) refers to Prosecution Guidelines that were made in 2005 and have been replaced with new Prosecution Guidelines. This Report recommends amending the Policy to refer to the current Guidelines.

 

BACKGROUND

In late August 2018, a report to Council (the Report) recommended that Council replace its Enforcement and Prosecutions Policy with a new Compliance Policy. Council adopted the recommendations of the Report, thereby adopting the Policy with effect from 12 September 2018.

 

The Policy makes reference to “The Director of Public Prosecutions’ ‘Statement of Prosecution Policy and Guidelines 2005’ ” (“the 2005 Guidelines”).

 

At the time the Report was being prepared for and submitted to Council, the Director of Public Prosecutions was finalising replacement guidelines for the 2005 Guidelines. Those replacement guidelines were made under Section 24(1) of the Director of Public Prosecutions Act 1991. The replacement guidelines were published in the Gazette of 31 August 2018 and became operative on 1 September 2018.

OFFICER COMMENT

City officers have considered the Statement of Prosecution Policy and Guidelines 2018 (“the 2018 Guidelines”), as they relate to considering the ‘prima facie case’ and ‘public interest’ aspects of a prospective prosecution action.

 

City officers recommend that Council replace, in the Policy, the reference to the 2005 Guidelines with a reference to the 2018 Guidelines.

 

Underpinning the Policy is recognition of the importance of voluntary compliance by citizens with regulatory laws. City officers can contribute to voluntary compliance by providing information (distinct from ‘advice’) about the nature of regulatory laws. Regulatory laws set ‘minimum’ standards of behaviour in a community. Regulatory laws do not confer a positive ‘right’ to do what is not prohibited. 

 

City officers also recommend minor amendments of form to the Policy, as indicated in the draft amended Compliance Policy (at Attachment B).

Statutory Environment

The enforcement of regulatory prohibitions is a necessary part of providing for ‘good government’ by maintaining acceptable standards of behaviour in the community.

 

Council is the governing body of a local government and is responsible under s 2.7 of the Local Government Act 1995 for the performance of local government functions, including by determining the local government’s policies.

Relevant Plans and Policies

Council adopted the Ranger and Emergency Services Approach to Regulatory Functions Policy in 2018. The CEO has made Operational Guidelines that support the City’s administration in implementing the Ranger’s Policy.

Financial Implications

There are no financial implications associated with the officer recommendation.

Stakeholder Consultation

No external stakeholder consultation was required or undertaken in relation to this matter.

Risk Assessment

No such risks have been identified.

Options

No reasonable alternative to the proposed recommendation has been identified.

CONCLUSION

It is recommended that Council adopt the amended Compliance Policy at Attachment B.

TIMELINE FOR IMPLEMENTATION OF OFFICER RECOMMENDATION

The amended Compliance Policy will be effective as of the making by Council of a resolution to adopt it.

 


Policy and Legislation Committee

17

27 May 2020

6.2

Attachment a

Compliance Policy (current)

 


 


 


Policy and Legislation Committee

20

27 May 2020

6.2

Attachment b

Compliance Policy (proposed)

 


 


 


Policy and Legislation Committee                                  21                                                                      27 May 2020

6.3             AMENDMENT TO COUNCIL POLICY AND DELEGATION: PURCHASING

STRATEGIC GOAL

6. LEADERSHIP Visionary, collaborative, accountable

STRATEGIC OBJECTIVE

6.1 Governance systems, process and practices are responsible, ethical and transparent.

SUBJECT INDEX

Council Policies

BUSINESS UNIT

Corporate Services

REPORTING OFFICER

Contract & Tendering Officer - Lisa McDonald

AUTHORISING OFFICER

Director Finance and Corporate Services - Tony Nottle

NATURE OF DECISION

Executive: substantial direction setting, including adopting strategies, plans and policies (excluding local planning policies), tenders, setting and amending budgets, funding, donations and sponsorships, reviewing committee recommendations

VOTING REQUIREMENT

Absolute Majority

ATTACHMENTS

Attachment a   Purchasing Policy - Current Version

Attachment b    Purchasing Policy - Amended (clean)

Attachment c    Purchasing Policy - Amended (tracked)

Attachment d   DA 1-07 - Current Version

Attachment e    DA 1-07 - Amended (clean)

Attachment f    DA 1-07 - Amended (tracked)  

 

COMMITTEE RECOMMENDATION AND OFFICER RECOMMENDATION

PL2005/311            Moved Councillor K Hick, seconded Councillor G Henley

 

That the Council:

1.              Adopts the amended Purchasing Policy as per Attachment B, replacing the current Purchasing Policy (shown as Attachment A); and

 

2.              Adopts the amended Delegation DA 1-07 as per Attachment E, replacing the current delegation (shown as Attachment D).

CARRIED 5/0

BY ABSOLUTE MAJORITY

 

EXECUTIVE SUMMARY

As a result of legislative amendments made by the State Government to the framework that regulates purchasing of goods and services by a local government, City officers are recommending minor amendments to Council’s Purchasing Policy and Delegation Instrument DA 1–07 ‘Inviting, Rejecting and Accepting Tenders’.

BACKGROUND

As part of its response to the current State of Emergency (COVID-19) declared under the Emergency Management Act 2005 (EM Act), the State government is effecting a range of legislative amendments.

 

One aspect of local government operations that has been impacted by these amendments is the ‘purchasing’ framework that regulates the purchase of goods and services by a local government.

 

The Local Government (Administration) Amendment Regulations 2020 (Amendment Regulations) were published in the Government Gazette on Thursday 9 April 2020. 


 

The key changes to the Local Government (Functions and General) Regulations 1996 (FG Regulations), which came into effect on 10 April 2020, are:

 

1.              to include a definition of a state of emergency declaration to reflect the EM Act (new FG Regulation  11(1A));

 

2.              to increase the threshold value of contracts required to be advertised for public tender from $150,000 to $250,000 (amended FG Regulation 11(1));

 

3.              in addition to exceptions previously provided for in the FG Regulations, tenders now do not have to be publicly invited if:

a.       the supply of the goods or services is associated with a state of emergency (new FG Regulation 11(2)(aa) ); or

b.  the local government seeks to renew or extend a contract that is to expire within 3 months and the renewal or extension will be for no more than 12 months and the renewal or extension is entered into during the state of emergency (new FG Regulation 11(2)(ja)).

 

The increase of the tender threshold amount is not limited to a time of a state of emergency, and will continue to apply after the current State of Emergency is over.

 

There is also an amendment relating to indigenous-related purchasing contracts, and to the extension or renewal of current contracts in connection with the state of emergency.

 

Regulation 11A of the FG Regulations requires a local government to adopt a “purchasing policy” in relation to contracts where the consideration is expected to be less than $150,000. It is understood that an amendment to this regulation is in the process of being implemented, to increase the amount to $250,000. This would then integrate with the increase to the tender threshold amount.

 

Purchasing Policy

Council’s current Purchasing Policy (Attachment A) makes a number of references to a threshold of $150,000. The Policy also refers to exceptions in Regulation 11(2) of the FG Regulations.

 

An amended Purchasing Policy (Attachment B) has increased these thresholds to $250,000 and included reference to the new exceptions, in particular the ‘emergency’ exceptions.

 

Delegation DA 1-07

Delegation from Council to CEO of the power to determine whether exemption in Regulation 11(2)(aa) applies

The new exception to when tenders have to be publicly invited in Regulation 11(2)(aa) states that tenders do not have to be publicly invited if the supply of goods or services is associated with a state of emergency. A state of emergency has the meaning as given in the EM Act. Therefore a ‘test’ has to be applied. The local government must “consider that the goods or services are required for the purpose of addressing a need arising from the hazard, or from the impact or consequences of the hazard, to which the state of emergency declaration relates”. 

 

This report recommends that Council delegates to the Chief Executive Officer (CEO) the power to determine whether this exception applies.

 


 

Delegation of power to enter into contracts where Regulation 11(2) applies (subject to usual $500,000 limit)

The current delegation instrument was adopted in August 2019 and replaced a delegation instrument having reference LG3J. The form of that previous instrument expressly provided for the delegation of the power to enter into a contract where an exception to the tender regulations applied.

 

In the course of Council adopting the delegations in the instrument DA 1–07, and as part of the simplification of the delegations register generally, the words relating to entering into contracts have been omitted.

 

In addition, the Amendment Regulations have introduced a new exception to when tenders must be invited.

 

This report recommends that Council adopt the amended delegation instrument DA 1-07 (Attachment E) to reflect the intention of Council that, in addition to delegating to the CEO the powers and duties to carry out tenders, it also delegates the powers and duties to apply exceptions to the tender requirements and to, in this instance, enter into contracts with a value not exceeding the pre-determined threshold specified in DA 1-07. 

 

While the delegation instrument as it stands delegates Regulation 11, inclusive of sub part (2), for reasons explained in the officer comment section of this report, it is considered beneficial to, in this instance explicitly expand on this to ensure Council’s intent is clear.

OFFICER COMMENT

Purchasing Policy

The amended Purchasing Policy (Attachment B) provides for replacing references to “$150,000” with references to “$250,000” and also including reference to the new exceptions, including the ‘emergency’ exceptions. These amendments are required to ensure the Purchasing Policy aligns with the legislative changes discussed in the Background section of this report.

 

WALGA recently circulated various changes to their template purchasing policy to reflect the changes to the FG Regulations. City Officers have reviewed the WALGA template purchasing policy changes, and at this time do not recommend any additional changes to Council’s Purchasing Policy.  Further consideration can be given to the template in due course. However it is noted that in 2018, in response to the City of Busselton Governance Services Review by Mr John Woodhouse, the City revised its Purchasing Policy to move a considerable level of detail into CEO ‘Operational Practices’.  City officers are not anticipating the making of recommendations that would depart from this approach.

 

It is also noted that there is an emphasis in the WALGA template on ‘best value for money’. City officers reviewed the Purchasing Policy at length in 2018 and recommended that Council base its policy on a ‘most advantageous’ test.  This aligns with the legislative approach in respect of tenders [see FG Regulations 18, 20 and 24AH)].  The ‘best value for money’ concept is understood to have its origins under the State Supply Commission Act 1991, and does not apply to local governments. City officers are not recommending any change to the Purchasing Policy in this regard.

 


 

Amendment to Delegation DA 1-07

Delegation from Council to CEO of the power to determine whether exemption in Regulation 11(2)(aa) applies

The new exception to when tenders have to be publicly invited, inserted by Regulation 11(2)(aa), is enabled where a ‘test’ (set out in new Regulation 11(3)) is satisfied. This test is that the local government must “consider that the goods or services are required for the purpose of addressing a need arising from the hazard, or from the impact or consequences of the hazard, to which the state of emergency declaration relates”.

 

While there may be an argument that “local government” in this regulation includes the CEO [see s 4 definition of “local government” in the Interpretation Act 1984, and see Columbia Holdings Pty Ltd – v – City of Armadale [2012] WASC 422], the safer course is to delegate this power to the CEO.

 

The current Delegation 1-07 refers generally to the whole of Regulation 11, and so this would include Regulation 11(2). Where a delegation instrument refers to a power under a regulation or section of an Act, and that regulation or section is amended, the delegation instrument applies only to the power as it was at the time the delegation instrument was made and does not automatically extend to the regulation or section as amended. Accordingly the delegation instrument DA 1-07 should be amended by Council to include the new exceptions under Regulation 11(2) which came in effect on 10 April 2020.

 

Delegation of power to enter into contracts where Regulation 11(2) applies (subject to usual $500,000 limit)

Although Regulation 11(2) of the LG Regulations specify a number of exceptions to the requirement to invite tenders for procurement of goods and services, it does not expressly confer the power to the CEO to enter into contracts under circumstances where an exception applies. As the CEO currently under DA 1-07 has the power to accept tenders where the contract value does not exceed $500,000, it is recommended that the power to enter into contracts under circumstances where an exception applies, is also delegated to the CEO, subject to abovementioned limit of $500,000.

 

As outlined in the Background section of this report, the current delegation instrument DA 1-07 was adopted in late 2019 as part of simplification of the City’s delegation register.  The opportunity exists to amend the delegation instrument DA 1-07 to better reflect the intention of Council, that is, in addition to the power to enter into contracts pursuant to a tender process, to more expressly delegate to the CEO the power to enter into contracts under circumstances where a tender exception applies, subject to a $500,000 limitation.

 

Through consultation, the governance and legal business units have settled on the proposed amendments to DA 1-07 (Attachment E).

 

Summary

In summary, it is recommended that Delegation instrument DA 1-07 be amended by Council to delegate power to the CEO to:

(a)  Determine whether an exception under Regulation 11(2) as amended (which will include the new Regulation 11(2)(aa) of the FG Regulations) applies; and 

(b)  Where an exception under Regulation 11(2) applies, negotiate and enter into contracts with suppliers where the contract value does not exceed $500,000.

Statutory Environment

In accordance with Section 2.7(2)(b) of the Act, it is the role of the Council to determine the local government’s policies. The Council does this on the recommendation of a Committee it has established in accordance with section 5.8 of that Act.

 

Regulation 11A(1) of the LG Regulations requires a local government to implement a purchasing policy in relation to contracts for the supply of goods or services where the consideration under the contract is, or is expected to be, $150,000 or less. Such a policy must, among other things, make provision in respect of:

·    the form of quotations acceptable;

·    the minimum number of oral and written quotations that must be obtained; and

·    the recording and retention of purchasing records.

 

Section 3.57(1) of the Act requires a local government to invite tenders before it enters into a contract of a prescribed kind under which another person is to supply goods or services. Section 3.57(2) provides that regulations may make provision about tenders.

 

Regulations 11 – 21A deal with matters relating to tenders, including when and how tenders have to be invited and requirements for assessing and accepting and/or rejecting tenders.   

 

Section 3.18 of the Act provides for the City to do all things necessary or convenient for carrying out its functions. Entering into contracts for the purchase of goods and serves is necessary for the City to perform its functions.

 

Under s 5.42 of the Act a local government may, by instrument in writing, delegate (by absolute majority) to the CEO the exercise of any of its powers or the discharge of any of its duties under the Act, subject to specified limitations.

 

Sections 58 (performance of functions by a delegate) and 59 (the effect of a delegation) of the Interpretation Act 1984 apply, subject to subsection 3(1) of that Act, to delegations made under the LG Act.

 

Under s 5.43 of the Act, a local government cannot delegate the power to accept a tender which exceeds an amount determined by the local government for the purposes of this paragraph. Under DA 1-07 this threshold is currently $500,000.

 

In relation to procurement of goods or services where the exceptions under Regulation 11(2) of the LG Regulations apply (that is where a local government is exempted from inviting tenders) the Act does not have a similar requirement - there is no requirement for a local government to determine, for purposes of a delegation to the CEO, an amount above which the CEO cannot enter into a contract under circumstances where an exception applies. It appears that this might have been an oversight when the relevant legislative provisions were drafted. WALGA recommend that a threshold be applied to procurement where a tender exception applies and the City has also contacted the Department of Local Government enquiring whether a relevant regulation may be appropriately made under s 5.43(i) of the Act. In the meantime, it would be prudent for Council to limit, for this type of procurement, the CEO’s delegated power to enter into contracts to an amount not exceeding $500,000 (effectively implementing an internal process similar to the process for accepting tenders).

 

Relevant Plans and Policies

The City has a policy framework which was developed and endorsed by Council in response to the recommendations of the 2017 Governance Service Review. The framework sets out the intent of Council policies, as opposed to operational documents such as Operational Practices.

 

Financial Implications

There are no financial implications associated with the officer recommendation.


 

Stakeholder Consultation

No external stakeholder consultation was required or undertaken in relation to this matter.

 

Risk Assessment

An assessment of the potential implications of implementing the officer recommendation has been undertaken using the City’s risk management framework, with risks assessed taking into account any controls already in place.

 

The officer recommendation reduces legal risk by properly identifying that the power to contract is being delegated, in addition to the performance of regulatory duties prior to a contract being entered into.

Options

As an alternative to the proposed recommendation the Council could:

1.    Request further or different amendments be made to the Purchasing Policy; or

2.    Request further or different amendments be made to Delegation DA 1-07.

 

CONCLUSION

Due to the legislative amendments made by the State Government to the purchasing of goods and services by a local government, minor amendments to Council’s Purchasing Policy and Delegation Instrument DA 1–07 ‘Inviting, Rejecting and Accepting Tenders’ are recommended.

TIMELINE FOR IMPLEMENTATION OF OFFICER RECOMMENDATION

The amended Purchasing Policy (Attachment B) and the amended delegation instrument DA 1-07 (Attachment D) will have effect into force immediately upon Council’s endorsement of the officer recommendations.

 


Policy and Legislation Committee

33

27 May 2020

6.3

Attachment a

Purchasing Policy - Current Version

 


 


 


 


 


 


 


Policy and Legislation Committee

39

27 May 2020

6.3

Attachment b

Purchasing Policy - Amended (clean)

 


 


 


 


 


 


Policy and Legislation Committee

46

27 May 2020

6.3

Attachment c

Purchasing Policy - Amended (tracked)

 


 


 


 


 


 


 


Policy and Legislation Committee

47

27 May 2020

6.3

Attachment d

DA 1-07 - Current Version

 


Policy and Legislation Committee

48

27 May 2020

6.3

Attachment e

DA 1-07 - Amended (clean)

 


 


Policy and Legislation Committee

49

27 May 2020

6.3

Attachment f

DA 1-07 - Amended (tracked)

 


Policy and Legislation Committee                                  54                                                                      27 May 2020

6.4             DELEGATION OF POWER TO DISPOSE OF PROPERTY AND LEASE AND LICENCE PREMISES

STRATEGIC GOAL

6. LEADERSHIP Visionary, collaborative, accountable

STRATEGIC OBJECTIVE

6.1 Governance systems, process and practices are responsible, ethical and transparent.

SUBJECT INDEX

Delegations

BUSINESS UNIT

Legal and Property Services

REPORTING OFFICER

Manager Legal and Property Services - Martyn Cavanagh

AUTHORISING OFFICER

Director Finance and Corporate Services - Tony Nottle

NATURE OF DECISION

Executive: substantial direction setting, including adopting strategies, plans and policies (excluding local planning policies), tenders, setting and amending budgets, funding, donations and sponsorships, reviewing committee recommendations

VOTING REQUIREMENT

Simple Majority

ATTACHMENTS

Attachment a   DA 1 - 22 Disposing of Property (Current)

Attachment b    DA 1 - 22A Proposed

Attachment c    DA 1 - 22B Proposed  

 

COMMITTEE RECOMMENDATION AND OFFICER RECOMMENDATION

PL2005/312            Moved Councillor K Hick, seconded Councillor K Cox

 

That the Council:

1.              Rescind the instrument of delegation DA 1-22 (Attachment A);

 

2.              Delegate powers and duties relating to disposing of property by sale, by adopting the proposed delegation instrument at Attachment B; and

 

3.              Delegate powers and duties relating to leasing and licensing of land and buildings, by adopting the proposed delegation instrument at Attachment C.

CARRIED 5/0

 

EXECUTIVE SUMMARY

Current delegation instrument DA 1–22 Disposing of Property deals with both land and non-land. It is directed at things that must be done before property is disposed of and it also refers to licensing (distinct from leasing) of land and buildings.

 

City officers recommend that the current delegation be rescinded and replaced with two distinct delegations that deal separately with, respectively, the sale of property (DA 1–22A: Attachment B) and the leasing/licensing of land/buildings (DA 1–22B: Attachment C).

 

BACKGROUND

Council has in force two delegations that apply respectively to ‘acquisition of property’, DA 1-21, formerly LG3B and ‘disposition of property’, DA 1–22, formerly LG3C.

 

Prior to these delegations, Council had in force a single delegation LG3K that had been in force since 2008.

 

In 2017, Council resolved to separate the delegation relating to ‘acquisition’ from the delegation relating to ‘disposal’ (C1706/151). This was to provide better distinction and clarity of the extent of the powers being delegated.

 

The delegation of powers relating to dispositions is instrument DA 1-22 (Attachment A). It provides for two distinct cases through the conditions imposed in the delegation: disposal by sale (whether land or otherwise), and leases/licences of property (land and/or buildings) in certain circumstances.

 

The express provision for leases/licences arises in connection with the City managing a large portfolio of land and buildings for the benefit of community and not for profit organisations and their causes. There are close to 100 of these. 

OFFICER COMMENT

While local governments have historically focussed on s3.58 of the Local Government Act (the Act) in connection with delegating powers of disposal, recent review and analysis by City officers has highlighted that s3.58 of the Act merely imposes certain obligations/restrictions on how or when property may be disposed of, rather than a power of disposal in itself. That is, s3.58 operates to impose statutory pre-conditions to the act of disposal.

 

That leads to the question of where the power to acquire or dispose of property is to be found in the Act. Section 5.43 of the Act expressly limits Council’s powers of delegation, including the power to acquire or dispose of property in excess of a determined amount as set by Council. Clearly the Act intends that Council can delegate power up to the relevant limit.

 

The source of power to acquire or dispose of property lies in the understanding that a local government is a body corporate with perpetual succession and the legal capacity of a natural person (s 2.5(2) and (3) of the Act). A natural person has, under common law, the capacity (power) to own (hold) property. Necessarily, a person must be able to acquire and dispose of property. So a local government therefore has this same capacity. 

 

The utilisation of this capacity is confirmed by s.3.18 of the Act, which is a conferral of power to do ‘necessary or convenient’ things for the purposes of conducting the affairs of the local government.  These powers may be augmented by provisions of other Acts. For example, under the Land Administration Act 1997, a local government may be given a power to grant a lease in respect of managed land.

 

Accordingly, officers from the property and governance teams have conferred, and agree that a better form of delegation of the power to dispose of property is by reference to both the source power under the Act as well as to the preconditions that must be satisfied in respect of certain disposals.

 

The opportunity also exists to delineate more clearly between ‘sale’ and ‘lease/licence’ transactions in the instruments of delegation. 

 

A proposed instrument of delegation for sale of property is at Attachment B. It provides for a general power to dispose of property (whether land or otherwise) by sale.

 

A proposed instrument of delegation for leasing or licensing of land and buildings is at Attachment C.  It provides for a general power to lease or licence land and buildings in specified circumstances.

 

Disposition by sale

If the property is land, the land must be of a value that is not more than $20,000, other than where (b) applies. If the property is land that has been put to public auction or put out to tender and not sold, the land must be of a value of not more than $100,000.

 

If the property is property other than land, the property must be of a value that is not more than $100,000.


 

Disposition by lease or licence

By far the most common type of disposition relating to land is a lease or licence of the land. Typically this occurs in connection with making land or buildings available to not for profit organisations. The issue of short term residential tenancies (as with the aged housing units) and some low value commercial arrangements such as periodic alfresco licences (associated with adjacent business premises) and short-term commercial leases of the health suites at the GLC are also common scenarios.

 

Council has an established Council policy: Leasing of City Premises. This applies to land and buildings either owned by the City or managed under a management order under the Land Administration Act 1997.

 

The terms of the current delegation purport to extend to the granting of licences. In the context of a ‘disposition’ within the meaning of that word in s 3.58 of the Act, the better view is that the granting of a licence is not a disposition as only a non-exclusive personal right is being given.

 

In the case of a lease or licence of land to a charitable, sporting or other not-for-profit body, it would be an exception to the requirements of s 3.58 of the Act and therefore within the exception provided for in Regulation 30(2)(b) of the Local Government (Functions and General) Regulations 1996 (the Regulations).

 

In the case of a licence or a lease of 2 years or less that does not grant exclusive possession (be it in favour of a for, or not for, profit entity), Regulation 30(2)(e) of the Regulations provides an exemption to the requirement of s 3.58 of the Act.

 

The more important issue, for delegation purposes, is to provide for the power to enter into the lease or licence agreement. As with the power to sell property, this is found in s.3.18 of the Act.

 

Accordingly, a new delegation instrument is proposed to replace the current delegation in so far as it applies to leases and licences of land (Attachment C).

 

As with the current delegation, the delegation of powers and duties is to apply to land or buildings comprising sporting or community facilities and to land and new facilities under 100m2 required for storage purposes.

 

In keeping with the recently endorsed Council policy: Leasing of City Premises in relation to the duration of a lease or licence, the new delegation proposes a maximum term of 10 years (generally leases are granted for an initial 5-year term with an option to renew for a further 5 years).

 

The current delegation provides for a maximum term of 5 years unless the lease is a renewal of a lease by a sporting group or community group of an existing building in which case the renewed term could be 10 years.

 

As with the current delegation, the value of the land and buildings being leased or licensed is not to exceed $25,000 per annum.

 

These conditions mirror the conditions (limitations) of the previous delegation.

Statutory Environment

The officer recommendation supports the general function of a local government under the Local Government Act 1995 to provide for the good government of persons in its district.

 

Under s.3.18 of the LG Act, the City can do all things necessary or convenient for carrying out its functions. Entering into contracts for the purchase of goods and services is necessary for the City to perform its functions.

 

While not a ‘statutory’ component of the legal framework, a ‘licence’ of property does not confer a ‘proprietary’ interest and differs from a lease that will generally confer a right to exclusive possession.

 

Under s 5.42 of the LG Act, a local government may, by instrument in writing, delegate (by absolute majority) to the CEO the exercise of any of its powers or the discharge of any of its duties under the Act, subject to specified limitations.

 

Sections 58 (performance of functions by a delegate) and 59 (the effect of the delegation) of the Interpretation Act 1984 apply, subject to subsection 3(1) of that Act, to delegations made under the LG Act.

 

Under s 5.43(d) of the LG Act, a local government cannot delegate the power to dispose of property valued at an amount which exceeds the amount determined by the local government for the purposes of that paragraph.

 

Under s 50(1) of the Interpretation Act 1984, where a written law confers upon a person a power to do or enforce the doing of any act or thing, all such powers shall also be deemed to be conferred on the person as are reasonably necessary to enable him to do or enforce the doing of the act or thing.  Delegation of a power to lease or licence will include the power to sign relevant agreements without a need to look for an express conferral of ‘authority’ to sign.

Relevant Plans and Policies

The City has a policy framework which was developed and endorsed by Council in response to the recommendations of the 2017 Governance Service Review. The framework sets out the intent of Council policies, as opposed to operational documents such as Operational Practices.

 

The officer recommendation supports the administration of Council policy: Leases of City Premises, adopted May 2020.

Financial Implications

There are no financial implications associated with the officer recommendation.

Stakeholder Consultation

No external stakeholder consultation was required or undertaken in relation to this matter.

Risk Assessment

An assessment of the potential implications of implementing the officer recommendation has been undertaken using the City’s risk management framework, with risks assessed taking into account any controls already in place. No risks of a medium or greater level have been identified.

Options

As an alternative to the proposed recommendation, the Council could decide to retain the current delegation instrument DA 1-22 (Attachment A).

 


 

CONCLUSION

Adopting the officer’s recommendation will result in the delegation of powers to dispose of property and enter into leases and licences being more transparent. This will facilitate the delegation of the leasing and licensing powers of the City to Directors to more efficiently implement the City’s Leases of City Premises Policy.

TIMELINE FOR IMPLEMENTATION OF OFFICER RECOMMENDATION

If Council resolves to rescind the current delegation DA 1–22 and adopt the proposed delegations DA 1–22A and DA 1–22B (Attachments B and C), then the CEO will be able to immediately delegate the powers to relevant officers.

 

 

 


Policy and Legislation Committee

56

27 May 2020

6.4

Attachment a

DA 1 - 22 Disposing of Property (Current)

 


 


Policy and Legislation Committee

57

27 May 2020

6.4

Attachment b

DA 1 - 22A Proposed

 


Policy and Legislation Committee

59

27 May 2020

6.4

Attachment c

DA 1 - 22B Proposed

 


 


Policy and Legislation Committee                                  62                                                                      27 May 2020

6.5             RESCISSION OF COUNCIL POLICY: 025 BUILDING CONTROL - STANDARD OF SITE CLASSIFICATION FOR SUBDIVISIONS

STRATEGIC GOAL

6. LEADERSHIP Visionary, collaborative, accountable

STRATEGIC OBJECTIVE

6.1 Governance systems, process and practices are responsible, ethical and transparent.

SUBJECT INDEX

Council Policies

BUSINESS UNIT

Development Control

REPORTING OFFICER

Development Control Coordinator - Ronald Wildschut

AUTHORISING OFFICER

Director, Engineering and Works Services - Oliver Darby

NATURE OF DECISION

Executive: substantial direction setting, including adopting strategies, plans and policies (excluding local planning policies), tenders, setting and amending budgets, funding, donations and sponsorships, reviewing committee recommendations

VOTING REQUIREMENT

Simple Majority

ATTACHMENTS

Attachment a   Council Policy 025: Building Control Standard Site Classification Subdivision  

 

11.36am:                   At this time, Mr Cavanagh and Mr Nottle left the meeting.

 

11.36am:                   At this time, Mr Abrahamse and Mr Wildschut entered the meeting.

 

COMMITTEE RECOMMENDATION AND OFFICER RECOMMENDATION

PL2005/313            Moved Councillor K Hick, seconded Councillor L Miles

 

That the Council rescinds Council policy ‘Building Control - Standard of Site Classification for Subdivisions’ (Attachment A).

CARRIED 5/0

EXECUTIVE SUMMARY

This report recommends the rescission of Council policy ‘Building Control – Standard of Site Classification for Subdivisions’ (the ‘Policy’, Attachment A), with the Policy having been reviewed as part of the City’s overall review of its Council policies, and the objectives of the Policy having been found to be achieved through alternative means.

 

BACKGROUND

The Policy outlines the parameters for the use of suitable fill-in subdivision development within the City of Busselton district. The Policy outlines the requirements of a site classification of ‘A’ to enable purchasers of lots within new subdivisions to build using minimum construction standards, without the need for individually engineered slabs and foundations.

 

The Policy further provides developers with the ability to, where they can demonstrate that achieving a site classification of ‘A’ is not practicable, seek City approval for a lesser site classification, through submission of certified designs for slabs and footings and the application of a Section 70A notification on the title of the subject lot/s.


 

OFFICER COMMENT

The requirement for lot site classification is addressed through the building licence application process. Further, the Australian Building Code requires “the foundation where the footing is to be located must be classified in accordance with AS 2870-2011 (Residential Slabs and Footings)”. City engineering officers monitor the standard of fill being imported into new subdivisions and review and approve the site classification, through the West Australian Planning Commission (WAPC) subdivision process.

 

The WAPC have standard conditions for subdivisions, with developers required to submit a pre-works geotechnical report, completed by a professional structural/geotechnical engineer. This report provides advice regarding the in situ ground conditions for the subdivision and recommendations on how to improve the ground conditions to achieve an acceptable site classification. City engineering officers then ensure that these recommendations are applied to the engineering designs submitted for that subdivision.  At the completion of all subdivision works, and prior to clearances, a condition requiring the developer to submit a post-works geotechnical report has to be satisfied. This report will provide, among other details, a general site classification for the subdivision as a whole.

 

In reviewing the Policy, officers consider the objectives of the Policy are currently being met through this WAPC subdivision process and through the City’s building licence application process. As a result, officers recommend that the Policy be rescinded.

Statutory Environment

In accordance with section 2.7(2)(b) of the Act, it is the role of the Council to determine the local government’s policies. The Council does this on recommendation of a committee it has established in accordance with section 5.8 of the Act.

 

The subdivision process set out by the West Australian Planning Commission provides the framework within which the City can monitor and control the standard of controlled fill being imported and approve practicable site classification.

 

The City is also able to manage the required site classification at the building licence application stage. The Australian Building Code requires, for each individual lot, “the foundation where the footing is to be located must be classified in accordance with AS 2870-2011 (Residential Slabs and Footings)”.

Relevant Plans and Policies

The City has a policy framework which was developed and endorsed by Council in response to the recommendations of the 2017 Governance Service Review. The framework sets out the intent of Council policies, as opposed to operational documents such as Operational Practices.

Financial Implications

There are no financial implications associated with the officer recommendation.

Stakeholder Consultation

No external stakeholder consultation was required or undertaken in relation to this matter.

Risk Assessment

An assessment of the potential implications of implementing the officer recommendation has been undertaken using the City’s risk management framework, with risks assessed taking into account any controls already in place. No risks of a medium or greater leave have been identified.

Options

As an alternative to the proposed recommendation the Council could:

1.    Retain the policy in its current form; or

2.    Retain and make amendments to the Policy.

CONCLUSION

The Policy has been reviewed and it is recommended that it be rescinded, as general site classification for new subdivisions are addressed through the WAPC subdivision application and clearance process, and site specific classification is addressed at the building licence application stage as a requirement of the Australian Building Code.

TIMELINE FOR IMPLEMENTATION OF OFFICER RECOMMENDATION

The Policy will be removed from the City’s website within one week of Council’s endorsement of the officer recommendation.

 


Policy and Legislation Committee

65

27 May 2020

6.5

Attachment a

Council Policy 025: Building Control Standard Site Classification Subdivision

 


 


 

 

 


Policy and Legislation Committee                                  66                                                                      27 May 2020

11.38am:              At this time, Mr Abrahamse and Mr Wildschut left the meeting.

7.               General Discussion Items  

Nil

 

8.               Next Meeting Date

Wednesday, 29 July 2020.

 

9.               Closure

The meeting closed at 11.39am.

 

 

 

 

THESE MINUTES CONSISTING OF PAGES 1 TO 66 WERE CONFIRMED AS A TRUE AND CORRECT RECORD ON Wednesday, 29 July 2020.

 

DATE:______________________  PRESIDING MEMBER:___________________________