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

CITY OF BUSSELTON

MINUTES FOR THE Council MEETING HELD ON 14 October 2020

TABLE OF CONTENTS

ITEM NO.                                        SUBJECT                                                                                                                              PAGE NO.

1....... Declaration of Opening aCKNOWLEDGEMENT OF COUNTRY / ACKNOWLEDGEMENT OF Visitors / DISCLAIMER / NOTICE OF RECORDING OF PROCEEDINGS. 3

2....... Attendance. 3

3....... Prayer. 3

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

5....... Disclosure Of Interests. 4

6....... Announcements Without Discussion.. 4

7....... Question Time For Public. 4

8....... Confirmation and Receipt Of Minutes. 5

Previous Council Meetings. 5

8.1          Minutes of the Council Meeting held 23 September 2020. 5

Committee Meetings. 5

8.2          Minutes of the Policy and Legislation Committee Meeting held 23 September 2020. 5

9....... RECEIVING OF Petitions, Presentations AND DEPUTATIONS. 5

10..... QUESTIONS BY MEMBERS OF WHICH DUE NOTICE HAS BEEN GIVEN (WITHOUT DISCUSSION). 5

11..... Items brought forward.. 6

ADOPTION BY EXCEPTION RESOLUTION.. 6

12.3        Policy and Legislation Committee - 23/09/2020 - RESCISSION OF COUNCIL POLICY 063 - PRIVATE WORKS MARGIN.. 7

13.1        TENDER RFT 03-20: CONSTRUCTION OF BORE(S) - DUNSBOROUGH NON-POTABLE WATER NETWORK PROJECT, MEWETT ROAD, QUINDALUP; APPOINTMENT OF SUCCESSFUL TENDERER. 12

13.2        APPLICATION FOR DEVELOPMENT APPROVAL FOR SERVICE STATION, LOT 100, No. 81-93 WEST STREET, BUSSELTON.. 19

17.1        COUNCILLORS' INFORMATION BULLETIN.. 187

ITEMS TO BE DEALT WITH BY SEPARATE RESOLUTION (WITHOUT DEBATE). 194

16.1        BUSSELTON NETBALL ASSOCIATION SURRENDER AND NEW LEASE LOIS HANNAY PAVILION.. 194

ITEMS FOR DEBATE. 200

12.1        Policy and Legislation Committee - 23/09/2020 - REVIEW OF COUNCIL POLICY: SHARK HAZARD RESPONSE. 200

12.2        Policy and Legislation Committee - 23/09/2020 - REVIEW OF COUNCIL POLICY: LEGAL REPRESENTATION FOR COUNCIL MEMBERS AND EMPLOYEES. 211

14..... Engineering and Work Services Report. 225

15..... Community and Commercial Services Report. 226

18..... Motions of which Previous Notice has been Given.. 227

19..... urgent business. 227

20..... Confidential Reports. 227

21..... Closure. 227

 


Council                                                                                      4                                                                  14 October 2020

MINUTES

 

MINUTES OF A Meeting of the Busselton City Council HELD IN Council Chambers, Administration Building, Southern Drive, Busselton, ON 14 October 2020 AT 5.30pm.

 

1.               Declaration of Opening aCKNOWLEDGEMENT OF COUNTRY / ACKNOWLEDGEMENT OF Visitors / DISCLAIMER / NOTICE OF RECORDING OF PROCEEDINGS

The Presiding Member opened the meeting at 5.33pm.

 

 

2.               Attendance

Presiding Member:

Members:

 

Cr Grant Henley     Mayor

Cr Kelly Hick             Deputy Mayor

Cr Sue Riccelli

Cr Ross Paine

Cr Kate Cox

Cr Paul Carter

Cr Jo Barrett-Lennard

Cr Lyndon Miles

 

Officers:

 

Mr Mike Archer, Chief Executive Officer

Mr Oliver Darby, Director, Engineering and Works Services

Mr Paul Needham, Director, Planning and Development Services

Mrs Naomi Searle, Director, Community and Commercial Services

Mr Tony Nottle, Director, Finance and Corporate Services

Mrs Sarah Pierson, Manager, Governance and Corporate Services

Mrs Emma Heys, Governance Coordinator

Ms Melissa Egan, Governance Officer

 

Apologies:

 

Cr Phill Cronin (up to 5.36pm and including Item 3)

 

Approved Leave of Absence:

 

Cr Phill Cronin (from 5.36pm and Item 4)

 

Media:

 

“Busselton-Dunsborough Mail”

 

Public:

 

4

 

3.               Prayer

The prayer was delivered by Phillip Gifford of the Dunsborough Community Church.

4.               Application for Leave of Absence 

Council Decision

C2010/099                Moved Councillor L Miles, seconded Councillor P Carter

That Cr Phill Cronin be granted a Leave of Absence for the remainder of this Ordinary Council Meeting held on 14 October 2020.

CARRIED 8/0

 

5.               Disclosure Of Interests

The Mayor noted his declaration of financial (proximity) interest in relation to item 16.1 ‘Busselton Netball Association Surrender and New Lease Lois Hannay Pavilion’.

 

The Mayor advised that in accordance with the Local Government (Rules of Conduct) Regulations 2007 this declaration would be read out immediately before Item 16.1 was discussed.

 

6.               Announcements Without Discussion

Announcements by the Presiding Member

 

Nil

 

7.               Question Time For Public

Response to Previous Questions Taken on Notice

 

Nil

Question Time for Public

 

7.1             Mr Ian Christophersen

                   (Question received by email and read by the Presiding Member)

 

Question

Given that the Council has stated there was a robust business case for the proposed Performing Arts, Culture and Convention Centre (BEACH) it’s logical, as part of the funding requirements, that a schedule of proposed user charges would have been determined. Can Council please provide, or provide a web link to, this list of proposed charges that non-commercial and commercial customers will be charged to use the BEACH facility?

 

Response

                   (Provided by Mrs Naomi Searle, Director Community and Commercial Services)

As part of the development of the Business Case for the BPACC a draft business operations plan was developed which in turn informed the development of a draft operating budget. The draft business operations plan, which can be found on the City’s YourSay website, identifies projected uses, attendances and hire rates. While the identified rates are projected only, that being not endorsed fees and charges, they are based on benchmarked Performing Art Centres.

 

8.               Confirmation and Receipt Of Minutes

Previous Council Meetings

8.1             Minutes of the Council Meeting held 23 September 2020

Council Decision

C2010/100              Moved Councillor P Carter, seconded Councillor K Cox

That the Minutes of the Council Meeting held 23 September 2020 be confirmed as a true and correct record.

CARRIED 8/0

 

Committee Meetings

8.2             Minutes of the Policy and Legislation Committee Meeting held 23 September 2020

Council Decision

C2010/101              Moved Councillor R Paine, seconded Councillor J Barrett-Lennard

That the Minutes of the Policy and Legislation Committee Meeting held 23 September 2020 be noted.

CARRIED 8/0

 

9.               RECEIVING OF Petitions, Presentations AND DEPUTATIONS

Petitions

 

Nil

Presentations

 

Nil

Deputations

 

Nil

 

10.             QUESTIONS BY MEMBERS OF WHICH DUE NOTICE HAS BEEN GIVEN (WITHOUT DISCUSSION)

Nil


 

11.             Items brought forward

ADOPTION BY EXCEPTION RESOLUTION

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

 

Council Decision

C2010/102              Moved Councillor P Carter, seconded Councillor L Miles

 

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

               

12.3        Policy and Legislation Committee - 23/09/2020 - RESCISSION OF COUNCIL POLICY 063 - PRIVATE WORKS MARGIN

 

13.1        TENDER RFT 03-20: CONSTRUCTION OF BORE(S) - DUNSBOROUGH NON-POTABLE WATER NETWORK PROJECT, MEWETT ROAD, QUINDALUP; APPOINTMENT OF SUCCESSFUL TENDERER

 

13.2        APPLICATION FOR DEVELOPMENT APPROVAL FOR SERVICE STATION, LOT 100, No. 81-93 WEST STREET, BUSSELTON

 

17.1        COUNCILLORS' INFORMATION BULLETIN

CARRIED 8/0

En Bloc

 


Council                                                                                      9                                                                  14 October 2020

12.3           Policy and Legislation Committee - 23/09/2020 - RESCISSION OF COUNCIL POLICY 063 - PRIVATE WORKS MARGIN

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

Manager Governance and Corporate Services - Sarah Pierson

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   Council Policy 063 - Private Works Margin

 

This item was considered by the Policy and Legislation Committee at its meeting on 23/09/2020, the recommendations from which have been included in this report.

 

Council Decision and Committee Recommendation and Officer Recommendation

C2010/103              Moved Councillor P Carter, seconded Councillor L Miles

 

That the Council rescinds Council Policy 063: Private Works Margin (Attachment A), effective immediately.

CARRIED 8/0

En Bloc

 

EXECUTIVE SUMMARY

This report recommends the rescission of Council policy 063: Private Works Margin (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, as the fees and charges outline the fee structure for private works, and the remainder of its content is operational in nature.

 

BACKGROUND

The City is, on occasion, although not regularly, requested to undertake private works, including road reinstatement works. The City’s fees and charges contain a fee for private works and road reinstatement works, which is the full cost plus a margin of 30%.

DESCRIPTION

ADOPTED FEE 2019/20 (Exc GST)

ADOPTED FEE 2020/21 (Exc GST)

ADOPTED FEE 2020/21 (Inc GST)

Reinstatements / Private Works

 

 

 

Road reserves charge for reinstatement of road reserves is the full cost plus profit margin as per Policy

Cost plus 30%

Cost plus 30%

Cost plus 30% plus GST

Private works charge for works requested to be undertaken by City resources is the full cost plus profit margin as per Policy

Cost plus 30%

Cost plus 30%

Cost plus 30% plus GST

 


 

The Policy was developed to provide additional guidance to officers as to the application of this margin. The Policy was reviewed in 2010, and again in 2016, with only minor amendments made. On review in 2010, the Committee considered rescinding the policy, noting that the fees and charges provide for private works to be levied, however officers felt it provided them with necessary operational guidance and so it was retained.    

OFFICER COMMENT

In response to the Governance Services Review carried out in 2017, the City developed a policy framework to clearly establish the strategic nature and intent of Council policies, as opposed to operational documents.  Since then, Council has been reviewing its Council policies to ensure that they align to the policy framework and that they provide strategic, and not operational, guidance. 

 

The Council have, at a strategic level, adopted a margin for the provision of private works, as per the adopted fees and charges. The fee description sets out a description of private works being “works requested to be undertaken by City resources”. Notably, the margins outlined in the Policy vary from those in the fees and charges. The fees and charges as adopted would apply over the Policy, resulting in sections of the Policy being effectively redundant. 

 

The remainder of the Policy details the operational processes by which quotes are to be provided by the City, and how the customer is to be charged. Given that the fee structure for private works is outlined in the fees and charges, and the operational nature of the Policy, it is recommended that it be rescinded and converted to an Operational Practice. 

 

It is noted that the fee descriptor refers to the profit margin as per Policy. The adopted fee on its own is clear and is not impacted by reference to the Policy, and therefore we don’t feel this reference poses any issues in terms of rescinding the Policy. We will however remove reference to the Policy at the first available opportunity.  

Statutory Environment

In accordance with section 2.7(2)(b) of the Local Government Act 1995 (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

As already outlined, the City has a policy framework which sets out the intent of Council policies. The recommendation to rescind the Policy is in line with that framework.

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 choose not to rescind the Policy and direct the CEO to review and update it instead.

CONCLUSION

The objectives of the Policy are reflected (and updated) in the City’s Fees and Charges, with the Policy providing operational guidance to officers, guidance which is better placed in an Operational Practice.  For these reasons, it is recommended that 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.


Council

11

14 October 2020

12.3

Attachment a

Council Policy 063 - Private Works Margin

 


 

 


Council                                                                                      13                                                               14 October 2020

13.             Planning and Development Services Report

13.1           TENDER RFT 03-20: CONSTRUCTION OF BORE(S) - DUNSBOROUGH NON-POTABLE WATER NETWORK PROJECT, MEWETT ROAD, QUINDALUP; APPOINTMENT OF SUCCESSFUL TENDERER

STRATEGIC GOAL

3. ENVIRONMENT Valued, conserved and enjoyed

STRATEGIC OBJECTIVE

3.4 Climate change risks and impacts are understood, acknowledged and responded to through appropriate planning and community education.

SUBJECT INDEX

Tenders

BUSINESS UNIT

Strategic Planning

REPORTING OFFICER

Manager, Strategic Planning - Matthew Riordan

Contract & Tendering Officer - Lisa McDonald

AUTHORISING OFFICER

Director, Planning and Development Services - Paul Needham

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   Dunsborough Non-Potable Water Network 'Stage 1'

Attachment b    RFT03-20 Location Plan

Attachment c    Published Under Separate Cover  Confidential Tender Evaluation and Recommendation Report  

 

Council Decision and Officer Recommendation

C2010/104              Moved Councillor P Carter, seconded Councillor L Miles

That the Council:

 

1.    Pursuant to RFT 03-20 ‘Construction of Bore(s) – Dunsborough Non-Potable Water Network Project’, accept the tender from Delmoss Nominees Pty Ltd T/A Welldrill (Welldrill) as being the most advantageous tender to the City (Successful Tenderer), subject to minor variations to be negotiated in accordance with Regulation 20 of the Local Government (Functions and General) Regulations 1996 (FG Regs).

 

2.    Delegates power and authority to the Chief Executive Officer to negotiate and agree with the Successful Tenderer minor variations in accordance with Regulation 20 of the FG Regs, subject to such variations and the final terms not exceeding the overall project budget.

CARRIED 8/0

En Bloc

 

EXECUTIVE SUMMARY

The Request for Tender 03-20 ‘Construction of Bore(s) – Dunsborough Non-Potable Water Network Project’ (RFT 03-20) invited tenders to engage an adequately skilled and experienced contractor to:

(a)       construct, test and equip exploration, production and/or monitoring bore(s) on Mewett Road, Quindalup (defined in the Request for Tender as the Bore Site) as part of the City’s Dunsborough Non-Potable Water Network Project;

(b)       comply with DWER requirements in relation to a Hydrogeological Assessment Report for these bores (as specified in the Drilling License); and

(c)       If required, provide the City with a report on the beneficial use (availability, volume, quality and sustainability) of groundwater available for extraction from this bore(s), defined as the ‘Requirements’.

 

Pursuant to RFT 03-20, and the evaluation and analysis of subsequent responses received, Delmoss Nominees Pty Ltd T/A Welldrill) (Welldrill) are recommended as the preferred tenderer.

 

BACKGROUND

The ‘South-West Non-Potable Water Study’, led by the Department of Water and Environmental Regulation (DWER), investigated and assessed non-potable water issues across the South-West. In this study titled ‘Options to Supply Water to Meet Green Space Irrigation Needs in the South-West 2015-2060’ (still awaiting final publication), Dunsborough was identified as an area experiencing ongoing and significant challenges.

 

Dunsborough has access to only limited available allocations of groundwater and is currently experiencing a shortfall of some 25 megalitres per annum; a shortfall predicted to rise to 528 megalitres per annum by 2060. It is therefore critical to establish a viable and sustainable non-potable water supply to meet those longer-term needs.

 

The Water Corporation (WC), in partnership with DWER and the City of Busselton, identified and assessed a range of potential non-potable water options for Dunsborough, including surface water, groundwater, and wastewater re-use. The groundwater option, even if lower quality and only available from the deeper Sue Coal Measures aquifer (water licences for the superficial Leederville aquifer have already been fully allocated), was selected as the best option for accessing non-potable water, suitable for the irrigation of parks, sporting ovals, and other green spaces (including, in time, potentially contributing to water supply for the Dunsborough Lakes Golf Course).    

 

In an earlier hydrogeological study commissioned by the City (‘HydroConcept’: January 2019) it was estimated that a total of 5-7 bores accessing the Sue Coal Measures may be required to address total anticipated irrigation water shortfalls in Dunsborough to 2060. These prospective well sites were identified within a bore field that was required to be situated east of the Dunsborough Fault, sufficiently inland from the coastline to mitigate potential problems associated with salinity, and far enough removed from existing Water Corporation (‘WC’) bores already in operation in the Sue Coal Measures aquifer in Quindalup (so as to prevent draw down, or otherwise adversely influence or affect operational efficiencies).

 

Research undertaken during the development of the City’s ‘Sports & Recreation Facilities Strategy 2020-2030’ identified a need to build the ovals in the Sporting Precinct in the current 2020/2021 financial year in order to meet strong community and strategic planning demand. As such, a viable and sustainable provision of non-potable water is urgently required.

 

The water well bore works the subject of RFT 03-20 will have the express aim of investigating the suitability and sustainability of an ongoing supply of non-potable water from the Sue Coal Measures aquifer to irrigate the proposed works for the Dunsborough Non-Potable Water Network Stage 1 (‘Stage 1’). The drilling works for this exploratory/test production bore are anticipated to take approximately 2-3 months to complete from formal project initiation.

 

Stage 1 will deliver a cost-effective solution for ovals construction planned at the new Dunsborough Lakes Sporting Precinct (‘Sporting Precinct’), and be designed to allow for future expansion to deliver a climate-resilient non-potable water supply for the irrigation of playing fields and other recreational and landscaped public open spaces for the long-term. Please refer to Attachment A.

 


 

It should be noted that the bore construction works for RFT 03-20 are not eligible for any of the grants funding ($1 million) successfully secured by the City from the Federal Government ‘Drought Communities Programme’ initiative. Rather, should the test production water well at Mewett Road prove to be a viable and sustainable initial source of non-potable irrigation water, the subject grants funding can be directed towards the cost of construction of pumping station(s), storage tanks, a pipeline network, and related plant and infrastructure (such as smart control technologies) in order to deliver irrigation water to areas identified in Stage 1. As a stipulation of the grants funding, these subsequent Stage 1 works must be completed by 30 June 2021 in order to justify acquittal of those funds.

 

There will, in time, be additional water wells (bores) needed to be constructed to service the planned growth of ‘green infrastructure’ and predicted irrigation water shortfalls in Dunsborough, but it is hoped that the quality, peak flow rates, and sustainable quantity of non-potable water discovered through the water well bore the subject of RFT 03-20 will enable a cost-effective and reliable supply of water for those new sporting ovals proposed for construction in the Sporting Precinct (when combined with the limited quantity of locally available groundwater that has already been secured).

 

A Location Plan of the subject exploration/test production bore (and monitoring bore) site on Mewett Road, Quindalup is provided at Attachment B.       

OFFICER COMMENT

Tender Assessment Process

The City issued RFT 03-20 by upload to TenderLink, and received a total of two submissions as follows:

1.         Delmoss Nominees Pty Ltd T/A Welldrill; and

2.         Aquatech Drilling Solutions Pty Ltd.

 

In accordance with the City’s procurement practices and procedures, assessments were carried out by an Evaluation Panel (‘Panel’) comprising City officers with relevant skills and experience.

 

The assessment process included:

(a)       Assessing submissions received against relevant Compliance Criteria. These criteria were not scored. Rather, each submission was assessed on a Yes/No basis as to whether each criterion was satisfactorily met. Both tenders were deemed to be compliant, although the tender by Aquatech Drilling Solutions Pty Ltd also included a ‘non-compliant’, alternative tender; and

(b)       Assessing submissions received against the relevant Qualitative Criteria, with each of those criteria given a score in accordance with the rating scale detailed below.

 

Qualitative Criteria

Weighting

Relevant Experience

30%

Local Benefit

5%

Key Personnel Skills and Experience

5%

Tenderer’s Resources

5%

Demonstrated Understanding

25%

 


 

Summary of Assessment Outcomes

‘Non-Compliant Tender’

The key difference between the (revised) ‘non-compliant’ tender (also called ‘non-conforming tender’ in the Tender Evaluation and Recommendation Report) and the original ‘compliant tender’ from Aquatech Drilling Solutions Pty Ltd was an apparent reduced number of hours spent on the itemised proposed works. The ‘non-conforming’ tender appeared to propose payment of hourly rates should itemised works not be able to be completed in the hours or by the means allocated. This, together with the balance of the overall submission, which was not considered to be clearly documented, made it difficult for the Panel to have confidence in a committed total lump sum price for works proposed that could be subject to potential change.

 

It was the unanimous decision of the Panel, therefore, that the ‘non-conforming’ tender could not be meaningfully considered alongside either of the ‘conforming tenders’ submitted by the subject companies. As such, it was rejected from final assessment.      

 

‘Compliant Tenders’

The two ‘compliant’ submissions received were processed through to Qualitative Criteria assessment on the basis that all terms, conditions and mandatory requirements of RFT 03-20 had been fully met. The submissions were scored according to the Qualitative Criteria outlined above and the net price was scored using the ‘Average Based Scoring Method’ recommended by WALGA in the ‘Local Government Purchasing and Tender Guide’.

 

The Panel members individually assessed the Qualitative Criteria for each schedule, then met and applied an average scoring to each of those schedules. These averaged scores were then added together to arrive at the final rankings.

 

Of the two compliant tenders, Welldrill provided what was considered to be a well-documented and detailed submission, and was duly ranked first on the ‘Qualitative Criteria’ assessment, and also ranked first in the ‘Weighted Cost Criteria’ assessment.

 

Refer to Attachment C: ‘Tender Evaluation and Recommendation Report’, which is included under separate cover as it is considered confidential. 

Statutory Environment

In terms of the Local Government (Functions and General) Regulations 1996 (LG Regulations) a local government must publicly invite tenders where the consideration for the supply of the relevant goods or services is likely to exceed the statutory threshold (currently $250,000). 

Relevant Plans and Policies

The procurement process in respect to RFT 03-20 complies with relevant requirements under the City’s Purchasing Policy.

Financial Implications

The exploration and test production bore works are proposed by the Preferred Tenderer at a total lump sum price of $630,282.02 (Exclusive of GST). This is for the satisfactory completion of Tasks 1 – 3 of RFT 03-20.

 

The construction of bores are a component of the ‘Dunsborough Non-Potable Water Network Project’, and will be funded from a total project budget of $2 million, listed as C3223 ‘Dunsborough Non-Potable Water Network’ and endorsed in the 2020/21 Capital Works budget.  Funding has come from the City’s ‘Coastal and Climate Adaptation Reserve’.

 

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 the intention being to identify risks which, following implementation of controls, are identified as being medium or greater. 

 

There are no such risks identified, with the Preferred Tenderer assessed as being capable of delivery of the project on time, and within budget, to the specified requirements and standards.

Options

As an alternative to the Officer Recommendation, the Council could determine not to accept the tender from Welldrill as being the most advantageous to the City, or that the company not be declared the Preferred Tenderer, for reasons to be outlined.

CONCLUSION

The submission from Welldrill is considered to be the most advantageous to the City. It is therefore recommended that Welldrill be awarded the contract resulting from RFT 03-20 on the basis of that company’s submitted lump sum price amounts/rates and the general terms and conditions.

TIMELINE FOR IMPLEMENTATION OF OFFICER RECOMMENDATION

If endorsed by the Council, it is expected that the City will enter into a contract with Welldrill on or about 1 November 2020.         

        


Council

17

14 October 2020

13.1

Attachment a

Dunsborough Non-Potable Water Network 'Stage 1'

 


Council

18

14 October 2020

13.1

Attachment b

RFT03-20 Location Plan

 


Council                                                                                      22                                                               14 October 2020

13.2           APPLICATION FOR DEVELOPMENT APPROVAL FOR SERVICE STATION, LOT 100, No. 81-93 WEST STREET, BUSSELTON

STRATEGIC GOAL

3. ENVIRONMENT Valued, conserved and enjoyed

STRATEGIC OBJECTIVE

3.1 Development is managed sustainably and our environment valued.

SUBJECT INDEX

Development/Planning Application

BUSINESS UNIT

Development Services

REPORTING OFFICER

Planning Officer - Kelley Nilsson-Linne

AUTHORISING OFFICER

Director, Planning and Development Services - Paul Needham

NATURE OF DECISION

Quasi-Judicial: to determine an application/matter that directly affects a person’s right and interests e.g. development applications, applications for other permits/licences, leases and other decisions that may be appealable to the State Admin Tribunal.

VOTING REQUIREMENT

Simple Majority

ATTACHMENTS

Attachment a   Attachment A Development Plans

Attachment b    Attachment B Revised Development Plans

Attachment c    Attachment C Traffic Impact Assessment

Attachment d   Attachment D Traffic Impact Assessment (Final)  - Mini Roundabout Plans (Appendix E)

Attachment e    Attachment E Cardnos Technical Memorandum

Attachment f    Attachment F DWER Water Quality Protection Note No. 49 - Service Station and 56 - Tanks for Fuel and Chemical Storage near Sensitive Water Resources

Attachment g   Attachment G Schedule of Submissions  

 

Council Decision and Officer Recommendation

C2010/105              Moved Councillor P Carter, seconded Councillor L Miles

That the Council determines:

 

A.        That application DA20/0207 submitted for a ‘Service Station’ is considered by the Council to be generally consistent with Local Planning Scheme No. 21 and the objectives and policies of the zone within which it is located.

 

B.         That Development Approval is issued for the proposal referred to above (A) subject to the following conditions:

 

General conditions

 

1          The development hereby approved shall be substantially commenced within two years from the date of this decision letter.

 

2          The development hereby approved shall be undertaken in accordance with the signed and stamped Approved Development Plans except as may be modified by the following conditions.

 

Prior to commencement of any works conditions

 

3          The development hereby approved, or any works required to implement the development, shall not commence until the following plans or details have been submitted to the satisfaction of the City and have been approved in writing:

 

 

3.1       Drainage Management Plan;

3.2       Landscaping Plan;

3.3       Fuel Delivery Management Plan;

3.4       Lighting Management Plan;

3.5       Details of required road upgrades, including:

a.         Detailed design of the roundabout at the Peel Street and West Street intersection – including the identification of existing services affected and to be relocated as a result of the roundabout;

b.        Detailed design of the new median strip, north of the existing West Street roundabout and adjacent to Access 2, to provide left-in left-out only access to the site from West Street.

 

3.6       Details of the modified vehicular crossover to Peel Terrace;

 

3.7       Details setting out a minimum number of 84 car parking bays to be provided on site - the parking areas, driveways and points of ingress and egress (including crossovers) shall be appropriately designed, constructed, drained and line marked;

 

3.8     Details setting out a minimum of one loading bay to be provided for the use hereby approved - the loading bay shall be appropriately designed, constructed, drained and line marked;

 

3.9       Details of the proposed bicycle parking facilities - the details shall include, as a minimum, the location, design and materials to be used in their construction;

 

3.10    Details of the proposed bin storage areas – the details shall include as a minimum, the design and the materials to be used in their construction;

 

3.11    An Acid Sulphate Soil Assessment;

 

3.12    Details of the acoustic fencing adjacent to the dwelling at No. 6 Peel Terrace; and

 

3.13    Details of the proposed ‘scrolling media sign’.

 

Prior to Occupation/Use of the Development Conditions

 

4          The development hereby approved shall not be occupied, or used, until all plans, details or works required by Condition 3 have been implemented; and, the following conditions have been complied with:

 

4.1       The construction of the approved roundabout referenced in Condition 3.5(a) shall be completed, at the full cost of the Applicant, to the satisfaction of the City.

 

Ongoing Conditions

 

5          The works undertaken to satisfy Conditions 3 and 4 shall be subsequently maintained for the life of the development; and, the following conditions shall be complied with:

 

 

 

5.1       For the life of the development, all illuminated signs hereby approved shall:

a.         Not be of a light emission intensity to cause a light overspill nuisance to occupiers of adjacent premises, cause a traffic hazard or distraction to drivers on the adjacent public road or be confused with traffic signals;

b.        Not flash, pulsate, chase, or otherwise cause a nuisance to occupiers of an adjoining site or the local area;

c.         Not be animated.

5.2      The Pylon Signs shall be restricted to a maximum of 6 metres above natural ground level.

CARRIED 8/0

En Bloc

 

EXECUTIVE SUMMARY

The City has received an application for a proposed Service Station. Due to the nature of the issues requiring consideration and the level of community interest the application is being presented to Council for determination, rather than being determined by City officers acting under delegated authority.

 

During the consultation period, the main concerns that have been raised are traffic management, congestion, impact on amenity and the environment.

 

Having considered the application, including submissions received, officers consider that the application is consistent with the City of Busselton Local Planning Scheme No. 21 (the ‘Scheme’) and the broader, relevant planning framework. It is recommended that the application be approved, subject to appropriate conditions, and in accordance with the revised plans submitted by the applicant with the aim of addressing some of the issues raised through public consultation. 

 

BACKGROUND

The Council is asked to consider an application for a Service Station at Lot 100 (No. 81-93) West Street, Busselton. Minor revisions were made to the plans after the public advertising period in response to consultation. A copy of the plans that were advertised are provided at Attachment A, and a copy of the revised plans, which Council are being asked to consider for approval, are provided at Attachment B.

 

The revisions to the plans principally include:

·        2.2m high Acoustic Fence between the Service Station and No. 6 Peel Terrace.

 

Key information regarding the application is set out below:

 

1.         Landowner: Loudi Developments Pty Ltd AS Trustee for the Loudi Development Trust.

 

2.         Applicant: Loudi Developments Pty Ltd AS Trustee for the Loudi Development Trust

 

3.         Site area: 9119m2


 

4.         General description of the site: Lot 100 (No.  81-93) West Street is situated on the eastern edge of the Service Commercial Zone located southwest of the Busselton Town Centre.  West Street and Peel Terrace run along the western and northern edges of the site (respectively), with low density residential housing to the east and south.  The site is basically flat, having been developed and used for commercial purposes.

 

The site was formerly occupied by Home Timber and Hardware. The site has since been redeveloped following approval for seven large Showroom units (DA18/0143 refers) which included the construction of an additional building over the former outdoor sales area. The units on this site are part vacant, part occupied.

 

5.         Current development/use: A number of the units on the site are vacant with the remainder used as Showrooms.

 

6.         Brief description of proposed development: The application seeks approval to redevelop the northern portion of the site, to incorporate a Service Station. The proposal involves adjustments to the recently completed building, whereby the two northern most units (1 and 2) are effectively replaced with:

·        Eight bowser Service Station (fuel sales and convenience store) including ancillary facilities such as parking, water and air bay at the northern end of the site;

·        Retail floor space of approximately 201m2 integrated into the primary building at the northern end of the site;

·        300m2 canopy, measuring a maximum of 5.12m in height, covering refuelling bays and bowsers;

·        Alterations to the existing building to provide a greater setback to Peel Terrace to facilitate the fuel forecourt and modified access and parking arrangements;

·        Modifications to the existing Peel Terrace crossover (widened from 6m to 10m) to accommodate fuel tanker movements;

·        The Service Station is proposed to operate 24 hours a day, seven days a week, with the maximum number of staff on at any one time expected to be two;

·        The residual area of Unit 1 has been absorbed into Unit 2, increasing its built strata area from 487m2 to 607m2 (an overall reduction of 366m2 in cumulative building floor space – from 1,185m2 to 819m2);

·        Two underground fuel storage tanks;

·        Signage, including two 6m tall internally illuminated monolith pylon signs fronting Peel Terrace and West Street (respectively);

·        An adjusted car park layout, including a reduction in total bays (from 95 to 84) catering for both customers and staff;

·        Minor adjustments to the recently installed landscaping on-site (slight reduction only – no new planting).

 

7.         Applicable Zoning and Special Control Area designations: The site is located within the Service Commercial Zone.

 

8.         Land-use permissibility: Service Station is a ‘D’ use in the Service Commercial Zone, meaning that it is a discretionary land use, not permitted unless the local government has exercised its discretion by granting development approval. 

 

OFFICER COMMENT

The main issues considered relevant for detailed discussion in this report are as follows:

·        General considerations when making a decision on a development application;

·        Traffic and access;

·        Residential amenity; and

·        Environmental impacts.

 

General considerations when making a decision on a development application

When considering a development application for any land use designated as “D” or “A” land use under Table 2 - The Zoning Table of the Scheme, a decision-maker is required to exercise discretion when considering the development. The exercise of discretion should take into account relevant considerations as identified within Clause 67 – ‘Matters to be considered by local government’ of Schedule 2 of the Deemed Provisions of the Planning and Development (Local Planning Schemes) Regulations 2015. The decision-maker has an obligation to exercise their statutory responsibilities appropriately and a decision is required to be based upon sound planning principles.

 

The ‘Matters to be Considered’ which are relevant to this development application are outlined in the Statutory Environment section of this report. If an item or issue is not listed as a ‘Matter to be Considered’, it is not deemed to be a valid planning consideration and therefore is not to be given regard in the determination of a development application. 

 

The improvement of the region, including ‘economic development’ is one of the broader aims of the Scheme, however economic considerations are not listed as a ‘Matter to be Considered’ within the Regulations. Economic considerations per se should therefore only be considered when setting the planning framework and not when making a determination on an individual development application. 

Traffic and Access

Traffic

The development application was accompanied by a Traffic Impact Assessment (TIA) prepared by Transcore on behalf of the applicant which is provided at Attachment C. Subsequent to ongoing discussion with the City, a revised and final TIA dated 18 September 2020 was submitted and is provided at Attachment D.

Following concerns raised by the City’s Engineering and Works Services Department, and by members of the public via submissions received during the consultation process, the City sought an independent peer review of the TIA and additional traffic modelling from Cardno.  Cardno were asked to model four scenarios to assess the impact of the proposal, being:

 

Scenario 1: existing AM and PM peak hour volumes (i.e. no petrol station).

 

Scenario 2: as per Scenario 1, with the additional traffic generated by the proposed petrol station.

 

Scenario 3: as per Scenario 2 but with Access 2 limited to left-in, left-out turn movements.

 

Scenario 4: as per Scenario 3 but with a roundabout at the intersection of West Street / Peel Terrace.

 

 

It is noted that the new Service Station will result in relatively minor changes to traffic volumes. This is largely due to the fact that those utilising the new Service Station will be a result of pass–by trips, that is, cars already using the road network in this area and will not generate a large volume of new car trips.

 

The technical assessment and modelling of the proposal by Cardno (see Attachment E) however concluded that the levels of service (LOS) of Peel Terrace and West Street would deteriorate to an unacceptable level (Level D or below) without interventions, including the construction of a median adjacent to Access 2 to allow left-in left-out access only from West Street and a roundabout at the intersection of Peel Terrace and West Street.  The ‘Summary and Conclusion’ of their assessment indicates:  

“Based on the results from the traffic modelling exercise undertaken by Cardno for a number of access scenarios for the proposed petrol filling station at the south-eastern corner of West Street / Peel Terrace, the following conclusions have been reached for each of the scenarios:

 

Scenario 1 – The intersection of West Street / Peel Terrace is currently performing satisfactorily at LOS B and LOS C during the AM and PM peak hours, respectively.

 

Scenario 2 – With the additional traffic expected to be generated by the proposed petrol filling station, the overall intersection LOS remains unchanged, although it is noted that the LOS for the eastern approach (Peel Terrace) deteriorates from LOS C to D during the PM peak hour.

 

Scenario 3 – If turn restrictions are imposed to Access 2 to only allow left-turn movements, the overall intersection LOS deteriorates to LOS D and the eastern approach (Peel Terrace) deteriorates to LOS E during the PM peak hour, as the turn restrictions will result in additional right-turning traffic at the intersection of West Street / Peel Terrace.

 

Scenario 4 – The conversion of the intersection to a roundabout form will result in LOS A for the intersection during both the AM and PM peak hours.

 

Based on the above, an upgrade to the intersection of West Street / Peel Terrace (such as the roundabout modelled in Scenario 4) will be required to ensure satisfactory intersection performance. As previously noted, it is considered necessary to restrict the turn movements at Access 2 to only allow left-in and left-out turn movements, in order to mitigate the risk of queues extending from this Access to the roundabout further south.”

 

The City’s future traffic planning for this area, independent of the Service Station application, has identified that the West Street/Peel Terrace intersection may eventually need to be modified to address congestion. Further investigations and funding are required before work on this intersection or the broader road network in this area can be considered by the City.  As part of their application however, the applicant has proposed an interim solution for the West Street and Peel Terrace intersection in the form of a mini-roundabout option (Attachment E - Final TIA Appendix E) and have subsequently agreed to bear the full costs of the works should the development be approved.  The City is satisfied that this will facilitate an appropriate traffic outcome in the interim while the City undertakes the necessary investigations for any future upgrades to the road network in this area.

 

It is worth noting that the City has previously identified the need to restrict movements into Access 2 to allow for left-in left-out turn movements only between West Street and Lot 100. This was identified in previous modelling carried out which indicated that when Lot 100 and the Power Centre site are fully operational, the potential for queuing into the existing West Street roundabout would likely necessitate an increase in the median strip to restrict right turn movements into Lot 100. While the change is proposed to be secured as a ‘Prior to Commencement of Use’ condition, it is considered reasonable that the City meets the cost of the construction of the new median given it was anticipated this work would be required to be undertaken by the City in the near future in any case.

 

Access

Initially the fuel tankers were identified as accessing the site via West Street and leaving via Peel Terrace. However, further to review by the traffic consultants, it has now been agreed that the fuel tankers will enter the site via the Peel Terrace access only and exit the site via the West Street access only.

 

Fuel delivery is expected to occur 1 – 2 times per week outside the Service Station’s busy periods.  While it is acknowledged that the fuel tanker will only undertake fuel delivery 1-2 times per week, swept path plans (showing the extent of vehicle movements into and out of the site) for the fuel tankers show that they would encroach on the verge, footpath and parking bays.  As such, it is recommended that a condition for a delivery management plan be included, should an approval be issued, to demonstrate how the fuel tanker movements can be undertaken in a safe manner when delivering fuel to the site.

 

The access from Peel Terrace is proposed to be increased from 6m to 10m wide. The City is satisfied that the widening of this access point can be done in a manner that will mitigate vehicular and pedestrian conflicts subject to an agreed detailed design.  

 

Officers are satisfied that the traffic and access solutions identified during the application process are positive and will provide appropriate interim solutions to concerns associated with the development forward of the City undertaking a detailed analysis and review of changes required to the broader road network in this area.

Residential Amenity

The City received a number of submissions setting out concerns relating to residential amenity, as summarised below:

·        Traffic will adversely impact on residents in this locality (addressed above);

·        24 hour operation will result in noise, nuisance, anti-social behaviour, light spill; and

·        Health concerns relating to fumes from fuel and ground contamination.

 

24 hour operation will result in noise, nuisance, anti-social behaviour, light spill

The amenity of the properties to the east was assessed in detail when the site was approved for redevelopment in 2018 (DA18/0143). The property most affected by the service station will be No. 6 Peel Terrace which directly abuts the proposed development.  Although it is zoned ‘Residential’ No. 6 has an Additional Use (A68) on it for a Home Business and Office and a taxi business is believed to operate from this site.  The applicant has proposed to construct a 2.2m high acoustic fence on the boundary adjacent to the house at No. 6.  It is considered that an appropriately designed fence between the service station and No. 6 will adequately reduce noise and headlight glare and the requirement for a Lighting Management Plan will further reduce off-site impact associated with the 24 hour operation.

It is not expected that there will be any unreasonable amenity impacts on any other nearby residential properties by virtue of the distance from the proposed use and the existing two storey high parapet wall of the Showroom development which abuts the back of the lots on the western side of Edwards Street. Although the service station is proposed to operate 24 hours, given its location, it is not expected to have traffic movements during the night time/early morning hours that would generate noise levels that will cause nuisance to local residents. Further, noise from the development, including but not limited to noise from air-conditioning systems, equipment, machinery, collection of rubbish and recycling bins, business activities and music is to comply with Environmental Protection (Noise) Regulations 1997.  There are no anticipated anti-social behaviours associated with a Service Station and should this become an issue, it is a matter for the police to address.

Health concerns relating to fumes from fuel and ground contamination

The Department of Mines, Industry Regulations and Safety (DMIRS) have been consulted regarding the Service Station and have identified no issues with the development.  DMIRS have confirmed that the site will require a Dangerous Goods Licence before it can operate. The site requirements will be fully assessed during the Dangerous Goods Licence application process where it will be assessed against the relevant Australian Standards for compliance.

 

The issuing of the Dangerous Good Licence will ensure that there will be no adverse effect of storing fuel on site such as fumes (vapour) or ground contamination.

 

The City are satisfied that this type of industry is sufficiently regulated through DMIRS and there will be no unreasonable adverse impact on residential amenity as a result of the storage or use of fuel on site. 

Environmental Impacts

A number of concerns were raised regarding the impact the service station may have on the natural environment, more specifically the ground water and the wetlands in this area.

 

The application was referred to the Department of Health, Department of Water Environment and Regulations (DWER), DMIRS and the City’s Environment and Health teams for comment during the assessment of this application.

 

It is noted that a stormwater management plan is recommended as a condition of approval. This will address how drainage on the site is managed to ensure there will be no off-site impact associated with the proposed land use. The applicant will also require a Dangerous Goods Licence (as set out above), DWER approval for the installation of underground storage tanks and the site will be then listed as a contaminated site requiring monitoring.

 

DWER Water Quality Protection Note No. 49 – Service Station and 56 – Tanks for fuel and chemical storage near sensitive water resources from DWER would also apply (Attachment F).  The City is satisfied that the established regulation and controls relevant to Service Stations will ensure that the ground water and wetlands will not be adversely impacted by development.  

 

Statutory Environment

The key statutory environment is set out in the City of Busselton Local Planning Scheme 21 (Scheme), the Planning and Development (Local Planning Schemes) Regulations 2015 (Regulations), Schedule 2 of which is the ‘deemed provisions’, which also functionally form part of the Scheme. The key aspects of the Scheme and Regulations relevant to consideration of the application are set out below.

 

Zoning

The site is zoned ‘Service Commercial’.  The objectives of the Service Commercial Zone area as follows:

a.         To accommodate commercial activities which, because of the nature of the business, require good vehicular access and/or large sites.

 

b.         To provide for a range of wholesale sales, showrooms, trade and services which, by reason of their scale, character, operational or land requirements, are not generally appropriate in, or cannot conveniently or economically be accommodated in the Centre zones.

 

c.         To provide for development which will not result in a detrimental impact on surrounding commercial centres and has regard to the strategic importance and need to maintain the commercial primacy of the Regional Centre and Centre.

 

d.         To restrict development which is likely to contribute to ribbon development, the spread of centres, or otherwise detrimentally impact the efficiency of main or arterial roads.

 

The proposal is considered to satisfy the objectives of the zone.

 

Land-use and permissibility

The proposed land uses is defined as follows:

 

“Service Station” means premises other than premises used for a transport depot, panel beating, spray painting, major repairs or wrecking, that are used for:

(a)       the retail sale of petroleum products, motor vehicle accessories and goods of an incidental or convenience nature; or

(b)       the carrying out of greasing, tyre repairs and minor mechanical repairs to motor vehicles.

 

A Service Station is a ‘D use’ within the Service Commercial Zone.

 


 

Matters to be considered

Clause 67 of the deemed provisions within the Regulations sets out ‘matters to be considered’ by a local government in considering an application for development approval. The following matters are considered to be relevant to consideration of this application:

(a)       the aims and provisions of this Scheme and any other local planning scheme operating within the Scheme area;

(b)       the requirements of orderly and proper planning including any proposed local planning scheme or amendment to this Scheme that has been advertised under the Planning and Development (Local Planning Schemes) Regulations 2015 or any other proposed planning instrument that the local government is seriously considering adopting or approving;

(c)        any approved State planning policy;

(d)       Any environmental protection policy approved under the Environmental Protections Act 1986 Section 31 (d);

(e)       any policy of the commission;

(f)        any policy of the State;

(g)       any local planning policy for the Scheme area;…

(m)     the compatibility of the development with its setting including the relationship of the development to development on adjoining land or on other land in the locality including,  but not limited to, the likely effect of the height, bulk, scale, orientation and appearance of the development;

(n)       the amenity of the locality including the following —

             (i)    environmental impacts of the development;

             (ii)   the character of the locality;

             (iii) social impacts of the development;       

 (o)      the likely effect of the development on the natural environment or water resources and any means that are proposed to protect or to mitigate impacts on the natural environment or the water resource;

(r)        the suitability of the land for the development taking into account the possible risk to human health or safety;

 (s)      the adequacy of —

(i)  the proposed means of access to and egress from the site; and

(ii) arrangements for the loading, unloading, manoeuvring and parking of vehicles;

(t)        the amount of traffic likely to be generated by the development, particularly in relation to the capacity of the road system in the locality and the probable effect on traffic flow and safety;

(u)       the availability and adequacy for the development of the following —  

(i) public transport services; 

(ii) public utility services; 

(iii) storage, management and collection of waste; 

(iv) access for pedestrians and cyclists (including end of trip storage, toilet and shower facilities); 

(v) access by older people and people with disability;

          (w)      the history of the site where the development is to be located;

(x)       the impact of the development on the community as a whole notwithstanding the impact of the development on particular individuals;

(y)       any submissions received on the application;…

(zb)     any other planning consideration the local government considers appropriate.

 

The proposal generally complies with the relevant provisions noted above.

Relevant Plans and Policies

Local Planning Policy 2.1 – Car Parking

Parking Background

In 2018 the site was approved for a change of use to Showrooms (DA18/0143). This resulted in the creation of seven new units.  The total floor area created was 4,356m2 which required 87.5 parking spaces.  The applicant at the time provided 98 car parking spaces including two ACROD bays however the plans were subsequently amended and car parking bays were removed to relocate the bin store in order to allow for an adequate space for trucks. 95 car parking bays remained at the time of the application.

 

Local Planning Policy 2.1 (LPP 2.1) establishes the parking criteria for development within the City. A service station requires one bay per working pump. The service station would require a maximum of eight bays for the pumps. These eight bays are provided on the pump forecourt. A total of 10 parking bays (inclusive of one ACROD bay) are proposed as part of the development immediately adjacent to the Service Station shopfront.

 

The proposed Service Station will result in changes in the car parking numbers as follows:

·        Unit 3 -7 = 3,126m2 – Car parking calculated as Showroom/Warehouse 1 bay per 50m2 = 62.5

·        Unit 2 = 620m2 - Car parking calculated as Showroom/Warehouse 1 bay per 50m2 = 12.4

·        Unit 1 (Service Station) = 201m2 – calculated using the ‘Convenience Store’ rate of 1 bay per 30m2 = 6.7  and 1 car parking bay per employee using the Service Station calculations = 2

·        All units are provided with a loading/service bay

 

Total parking bays required - 84

Total parking bays provided - 84

The proposed service station development complies with LPP 2.1. Officers are satisfied that that the overall site has sufficient parking to meet the needs of existing and future operators.

Financial Implications

There are no financial implications associated with the Officer Recommendation.

Stakeholder Consultation

Clause 64 of the Deemed Provisions sets out circumstances in which an application for development approval must be advertised, and also sets out the means by which applications may be advertised. Given the scale of the proposed development, it was considered appropriate to advertise the development application.

 

The purpose of public consultation is to provide an opportunity for issues associated with a proposed development to be identified by those who potentially may be affected.  A development application should not be approved or refused based on the number of submissions it receives, rather all applications must be determined on the merits of the particular proposal, including consideration of any relevant planning issues raised through consultation.    

 

The application was open for submissions from 20 May 2020 to 11 June 2020 and was advertised in the following manner:

1.         Information regarding the application was posted on the City’s website;

2.         A portal was created using the City’s YourSay platform for the online lodgement of submissions;

3.         Letters were sent to a number of land owners within close proximity to the site;

4.         Two advertising signs were erected on the site; and

5.         A notice was placed in a local newspaper on 27 May 2020.

 

Submissions were received from a total of 24 people. All submissions were objections to the proposal. 

 

A schedule of submissions is provided as Attachment G. The schedule identifies who submissions were received from and summarises the submissions. The bulk of the submissions can generally be grouped as follows:

 

Objections / concerns raised regarding:

·        Traffic impacts, congestions and safety;

·        Too many service stations in this area of Busselton;

·        The impact of the service station on amenity (odour, noise and anti-social behavior); and

·        Environmental Impacts on the wetland and water table.

 

Where issues are raised which are not able to be considered, as they do not relate to the relevant planning framework, the comment provided indicates that. That does not necessarily suggest that the issues are not genuine issues of concern to the submitter or more broadly, but they are unfortunately not issues that can or should be addressed in the assessment of the application.

 

In addition to the above, the application was referred to Main Roads, Department of Health, Department of Water and Environmental Regulation, and Department of Mines, Industry, Regulations and Safety. A summary of these agencies’ comments are provided within the schedule of submissions at Attachment G.

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.         Refuse the proposal, setting out reasons for doing so; or

2.         Apply additional or different conditions.

 

CONCLUSION

Subject to the inclusion of relevant conditions, the proposal is considered appropriate to support and it is accordingly recommended for approval.

TIMELINE FOR IMPLEMENTATION OF OFFICER RECOMMENDATION

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

 

 


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13.2

Attachment a

Attachment A Development Plans

 









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13.2

Attachment b

Attachment B Revised Development Plans

 








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13.2

Attachment c

Attachment C Traffic Impact Assessment

 


































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13.2

Attachment d

Attachment D Traffic Impact Assessment (Final)  - Mini Roundabout Plans (Appendix E)

 




























































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13.2

Attachment e

Attachment E Cardnos Technical Memorandum

 








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13.2

Attachment f

Attachment F DWER Water Quality Protection Note No. 49 - Service Station and 56 - Tanks for Fuel and Chemical Storage near Sensitive Water Resources

 




























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13.2

Attachment g

Attachment G Schedule of Submissions

 














 


Council                                                                                      188                                                             14 October 2020

17.             Chief Executive Officers Report

17.1           COUNCILLORS' INFORMATION BULLETIN

STRATEGIC GOAL

6. LEADERSHIP Visionary, collaborative, accountable

STRATEGIC OBJECTIVE

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

SUBJECT INDEX

Councillors Information Bulletin

BUSINESS UNIT

Executive Services

REPORTING OFFICER

Reporting Officers - Various

AUTHORISING OFFICER

Director Finance and Corporate Services - Tony Nottle

NATURE OF DECISION

Noting: the item does not require a decision of Council and is simply for information purposes and noting

VOTING REQUIREMENT

Simple Majority

ATTACHMENTS

Attachment a   Current State Administrative Tribunal Reviews

Attachment b    Letter from Chief Health Officer : COVID Event Plans and Approvals  

 

Council Decision and Officer Recommendation

C2010/106              Moved Councillor P Carter, seconded Councillor L Miles

 

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

 

17.1.1       State Administrative Tribunal Reviews

17.1.2       YouthCARE School Chaplaincy Service

17.1.3       Local Government Authorised Officer Involvement in COVID Event Plan Risk Assessment and Approval Process

CARRIED 8/0

En Bloc

 

EXECUTIVE SUMMARY

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

17.1.1       State Administrative Tribunal Reviews

 

A summary of the current State Administrative Tribunal reviews is at Attachment A.


 

17.1.2       YouthCARE School Chaplaincy Service 

 

Correspondence has been received from YouthCARE CEO, Stanley Jeyraj in acknowledgement of the City’s contribution towards the YouthCARE school chaplaincy service:

 

Dear Mayor Grant,

I thank you, fellow Councillors and officers at the City for the kind and generous contribution towards Youthcare’s School Chaplaincy Service. We truly value your amazing support.”

 

17.1.3       Local Government Authorised Officer Involvement in COVID Event Plan Risk Assessment and Approval Process  

 

Correspondence received from Dr Andrew Robertson, Chief Health Officer, Department of Health, is at Attachment B.  


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17.1

Attachment a

Current State Administrative Tribunal Reviews

 




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17.1

Attachment b

Letter from Chief Health Officer : COVID Event Plans and Approvals

 


 

 


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ITEMS TO BE DEALT WITH BY SEPARATE RESOLUTION (WITHOUT DEBATE)

16.             Finance and Corporate Services Report

16.1           BUSSELTON NETBALL ASSOCIATION SURRENDER AND NEW LEASE LOIS HANNAY PAVILION

STRATEGIC GOAL

1. COMMUNITY: Welcoming, friendly, healthy

STRATEGIC OBJECTIVE

1.3 A community with access to a range of cultural and art, social and recreational facilities and experiences.

SUBJECT INDEX

Agreements and Contracts

BUSINESS UNIT

Corporate Services

REPORTING OFFICER

Senior Leasing and Property Officer - Ann Strang

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   Proposed Leased Premises Busselton Netball Association  

 

DISCLOSURE OF INTEREST

Date

14 October 2020

Meeting

Ordinary Council

Name/Position

Cr Grant Henley, Mayor

Item No./Subject

16.1 Busselton Netball Association Surrender and New Lease Lois Hannay Pavilion

Type of Interest

Financial (Proximity) Interest

Nature of Interest

My residential property adjoins the property that is the subject of the lease agreement.

 

5.40pm:         At this time, the Mayor left the meeting and Deputy Mayor Cr Kelly Hick assumed the chair.

 

Council Decision and Officer Recommendation

C2010/107              Moved Councillor R Paine, seconded Councillor P Carter

That the Council:

1.         Resolves to accept a surrender of the current lease between the City of Busselton and Busselton Netball Association Inc.

 

2.         Resolves to enter into a new lease, subject to the consent of the Minister for Lands, with the Busselton Netball Association Inc. for a portion of Reserve 17319, Lot 539 on Deposited Plan 404860, Volume LR3167, Folio 873, 2 King Street, Busselton, as shown outlined in orange on Attachment A, on the following terms:

(a)       The term of the lease to be 10 years commencing on the date of surrender, with a further 10 year option;

(b)       The rent to commence at $230.00 inclusive of GST per annum and increased by $5.00 on each anniversary;

(c)       Ancillary to the permitted use, the lease will require the Tenant to make available for hire the common room, kitchen and ablutions to other sporting and community groups when not being used by the Tenant. The City in consultation with the Tenant will determine the schedule of hire charges;

(d)       The City may restrict access to the Premises up to 5 days per calendar year during approved City events held at Lou Weston Reserve;

 

(e)       A requirement for the Tenant to establish and maintain a contingency fund for the purpose of asset management and capital improvements to the Premises.  The Tenant to contribute $7,000 per annum into the account in the first three years of the Lease, in the fourth year the contribution to increase to $10,000 per annum and thereafter increased by CPI. 

 

(f)        A clause stating that should a State of Emergency be declared in Western Australia that prevents the Tenants’ use of the Premises, the City will not commence enforcement action against the Tenant for failure  to make the contribution amount (referred to in (e) above) in full during that period and will instead negotiate in good faith with the Tenant a variation to the contribution requirement under the lease;  and

 

(g)       All costs associated with the preparation of the lease are to be met by the Tenant.

CARRIED 7/0

 

EXECUTIVE SUMMARY

The City obtained funding from the Department of Local Government, Sport and Cultural Industries (DLGSCI) through the Community Sport and Recreation Facilities Fund (CSRFF) towards the redevelopment of the netball courts and the Lois Hannay Pavilion (LHP), located on Reserve 17319 (Lou Weston).

 

The LHP is leased to the Busselton Netball Association Inc. (BNA).  As the building footprint of the new pavilion differs from the existing leased premises it is recommended, and the BNA have agreed, to enter into a new lease. The new lease will reflect the current approach of responsible asset management, an agreement concerning hire of the facility to other sporting and community groups, and the grant of a longer term. 

BACKGROUND

Lou Weston is Crown Land situated on Lot 539, Reserve 17319, King Street, Busselton, managed by the City for the purpose of ‘Recreation’. The management order contains the power to lease any part of the reserve for terms up to 21 years, subject to the consent of the Minister for Lands.  It is utilised all year round by various sporting clubs including Netball, Junior Football and Tee-ball. The use of the ovals on Lou Weston are managed through a seasonal hire arrangement. The Geographe Bay Yacht Club and the Busselton Fitness Club also lease portions of Lou Weston.

The BNA moved to Lou Weston in 1963.  They become incorporated in 1971. In 1983, they funded the construction of the original LHP, which officially opened in May 1985.  The BNA remained in occupation of the LHP without any formal tenure until 2013 when Council resolved (C1309/232) to enter into a lease of the whole building.  The lease was for a term of 5 years with a further 5 year option. They are now into their second term of the lease which expires in 2024. 

At the time of the original lease proposal being presented to Council, the BNA expressed their preference for a 21 year lease term.  The shorter term was however recommended as the City had committed to developing a concept design for Lou Weston in the four year Corporate Plan, and the outcome of that would likely have an impact on their leased premises.  The City did however grant a right of first refusal to the BNA should the premises be offered for lease at the end of the term. The provision was included to address BNA’s concerns that the City would offer a lease of their premises to another group or entity after the 10 year expiry.

Since 2012, there has been extensive consultation undertaken with user groups at Lou Weston and the community to determine the future needs at Lou Weston. A concept design was prepared for a pavilion between the oval and the netball courts. However, following an unsuccessful funding application to the DLGSCI in 2017, the Council resolved in September 2018 (C1809/192) to support a submission for another CSRFF application - this time to redevelop both the existing LHP and netball courts at Lou Weston. The submission was based on the facility being a multi-use facility for users of the Lou Weston.  The City was successful with this application. A grant agreement between the City and the DLGSCI was entered into in March this year, for the sum of $400,000.

The tender for construction was awarded on 11 December 2019. The cost of the redevelopment of the LHP was in the vicinity of $800,000. The BNA committed $120,000 towards the project.

OFFICER COMMENT

The proposed lease premises are the areas outlined in orange and marked common room, store/referee room, co-ordinators room, kitchen, store - netball, dry store, female WC’s, male WC’s,  UAT, ramp, bin enclosure and grease trap on the plan attached (the Premises).

 

The undercover area and access ways (Shared Use Areas) will be available for use by the general public and by users of Lou Weston via the seasonal hire arrangements. The use of the store room shown on the plan as ‘store - other’ has been excluded from the lease.  This will provide flexibility for the City in respect to future use of this space.

 

The BNA are seeking a longer term tenure over the Premises. In recognition of their financial contribution to the LHP, their commitment to future asset management and the longevity of their association with the facility, officers consider a longer term to be appropriate and in keeping with current Council policy. To remain consistent with other leasehold interest on Lou Weston, it is recommended that a 10 year lease with a further 10 year option be offered. 

 

The intention of the LHP is for a multi-use facility, therefore it is proposed that the lease be conditional on the BNA making the common room, kitchen and female, male and unisex disabled toilets (Function Space) available for hire by other sporting and community groups utilising Lou Weston. This will ensure the permitted use remains consistent with the submission for CRSFF grant funding. Although the toilets in LHP are not public, this condition aims to ensure the facilities are available for other user groups to utilise. The lease will also require that fees charged to other groups are reasonable and provide a mechanism by which the City may require a review of the fees if necessary.

 

It is also proposed that a provision be included in the lease allowing the City to restrict the BNA’s access to the land and Premises during a City approved event on Lou Weston. This restriction will be limited to no more than five (5) days per calendar year.

 

As the BNA will be responsible for all maintenance of the Premises (excluding the Shared Use Areas and Other Store) it is recommended that the lease includes a requirement to establish and make ongoing yearly contributions to a building maintenance fund.  Similar provisions have been included in recent leases to not-for-profit tenants.  An amount of $10,000 per annum is considered appropriate based on asset management modelling, increased annually by CPI.  To provide a lead in time it is proposed that the BNA contribute $7,000 per annum in the first three years, increasing to $10,000 in the fourth year and thereafter reviewed by CPI.  The BNA have a current practice of collecting $10 per annum per player towards their current building maintenance requirements, and this year, with some reduced membership due to COVID-19, would have collected $7,000, hence this is seen as a suitable initial amount. 

 


 

The recent pandemic has raised a concern for the BNA in respect to their ability to meet this requirement should similar unforeseen circumstances arise. In order to offer increased security in such an event, it is proposed that the City would not issue a breach should the BNA fail to meet the obligation in respect to the contribution due to a State of Emergency be declared in Western Australia that affects the BNA’s use of the Premises.   

Statutory Environment

When disposing of property whether by sale, lease or other means, a local government is bound by the requirement of section 3.58 of the Local Government Act which requires giving local public notice when disposing of property.  There are exemptions to this process under Regulation 30(2)(b)(i) and (ii) of the Local Government (Functions & General) Regulations which states:

Disposal of land to incorporated bodies with objects of benevolent, cultural, educational or similar nature and the members of which are not enlisted to receive any pecuniary profit from the body’s transactions, are exempt from the advertising and tender requirements of section 3.58 of the Local Government Act.

The constitution of BNA is such that this exemption applies.   

The land on which the LHP is located is within Reserve 17319, Lot 539, Deposited Plan 404860, Volume LR3167, Folio 873, being Crown Land for the designated purpose of Recreation. The City is the management body under Management Order N534868. The City has the power to lease or licence for periods up to 21 years, subject to the consent of the Minister for Lands.

Under Section 18(2) of the Land Administration Act 1997, approval of the Minister for Lands is required for a lease on a Crown Reserve. Additionally, the lease is to be lodged with Landgate in accordance with the Transfer of Land Act 1893 (TLA). 

Relevant Plans and Policies

The recommendation to enter into a lease with BNA is generally consistent with the principles of the Council policy adopted by Council on 13 May 2020. While this policy generally provides for a lease term for a not for profit, sporting and community organisation of 5 years plus a 5 year option (exercisable by the tenant), it also contemplates circumstances where it is appropriate to offer a longer lease term. The longer term proposed for the BNA is consistent with other current leasehold interests of Lou Weston, such as the Busselton Fitness Club and the Geographe Bay Yacht Club.

 

Lou Weston was identified in the City of Busselton Sport and Recreation Facilities Strategy 2020-2030 in Key Area 1 as a District Facility for netball and one of the highest used sporting facilities in the City.

Financial Implications

Other than general maintenance requirements associated with shared seating and infrastructure, there are no financial implications associated with entering into a lease with BNA for the Premises.  The lease will include requirements for the tenants to pay outgoings including services and insurance as well as meet the costs of maintenance and repair of the Premises, including structural repairs. 

 

The rent applied to community and sporting groups leasing City owned or managed land is currently $230.00 per annum increased by $5.00 on each anniversary (all amounts are inclusive of GST). It is proposed that this annual rent be charged to the BNA. 

Stakeholder Consultation

There has been extensive consultation undertaken with the community and user groups in respect to the concept plan for Lou Weston. The LHP has been designed to accommodate the BNA’s needs associated with their use, in particular when used in conjunction with their use of the courts.

 

The BNA have been consulted concerning the terms and conditions of the proposed lease.

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 resolve to enter into a shorter or longer term lease, however not exceeding 21 years.

CONCLUSION

The grant of a long term lease which includes the specific provisions outlined in this report are the culmination of collaboration and negotiations that City Officers consider are a fair reflection of the needs and requirements of both parties in a changing environment. The term is also consistent with the leases of other portions of Lou Weston to not for profit organisations with similar long term association and attachment to the facility. The commitment to make the LHP available to other sporting disciplines is welcomed as a positive move towards accommodating a wider variety of sporting offerings in the district.

TIMELINE FOR IMPLEMENTATION OF OFFICER RECOMMENDATION

It is anticipated that the lease and surrender would be forwarded to the BNA and executed by all parties no later than 30 November 2020.


Council

199

14 October 2020

16.1

Attachment a

Proposed Leased Premises Busselton Netball Association

 

 


Council                                                                                      202                                                             14 October 2020

5.41pm:                At this time, the Mayor re-entered the meeting and assumed the Chair.

 

ITEMS FOR DEBATE

12.1           Policy and Legislation Committee - 23/09/2020 - REVIEW OF COUNCIL POLICY: SHARK HAZARD RESPONSE

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

Environmental Services

REPORTING OFFICER

Ranger & Emergency Services Coordinator - Ian McDowell

AUTHORISING OFFICER

Director, Planning and Development Services - Paul Needham

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: Shark Hazard Response (Proposed)

Attachment b    Council Policy: 044 Shark Hazard Response (Current)

Attachment c    Council Policy: Shark Hazard Response (Proposed) with Committee Amendments

 

This item was considered by the Policy and Legislation Committee at its meeting on 23/09/2020, the recommendations from which have been included in this report.

 

OFFICER RECOMMENDATION

That the Council adopts the revised Council Policy: Shark Hazard Response (Attachment A), to replace the current Council Policy 044: Shark Hazard Response (Attachment B).

 

COMMITTEE RECOMMENDATION

Moved Councillor S Riccelli, seconded Councillor P Carter

That the Council adopts the revised Council Policy: Shark Hazard Response inclusive of Committee amendments as per Attachment C (as circulated to the Committee), to replace the current Council Policy 044: Shark Hazard Response (Attachment B).

 

There was opposition to the Committee Recommendation and Cr Hick moved the following amendments which were foreshadowed prior to the meeting:

 

Council Decision and amendment

C2010/108              Moved Deputy Mayor K Hick, seconded Councillor J Barrett-Lennard

 

That the Council adopts the revised Council Policy: Shark Hazard Response as per Attachment C with the following amendments:

1.              Replace ‘Shark Monitoring Network’ in paragraph 5.2 with ‘shark monitoring network’ to remove potential reference as a defined term;

 

2.              Replace the word ‘shall’ with the word ‘will’ in paragraph 5.7;

 

3.              Replace the term ‘Fisheries’ with ‘Department of Primary Industries and Regional Development (Fisheries branch)’ in paragraph 5.7; 

 

4.              Amend paragraph 5.8(b) to read: “providing information on Patrolled Beaches within the City including patrol dates and times”; and

 

5.              Amend paragraph 5.8(c) to read: “encouraging swimmers to swim at Patrolled Beaches or within the beach enclosures at Busselton and Dunsborough”.

CARRIED 8/0

 

The amendments to the Committee Recommendation were carried and the motion as amended became the substantive motion, which was then put to a vote:

 

Council Decision AND AMENDED COMMITTEE RECOMMENDATION

C2010/109              Moved Councillor S Riccelli, seconded Councillor P Carter

 

That the Council adopts the revised Council Policy: Shark Hazard Response inclusive of Committee amendments as per Attachment C and with the above additional amendments to replace the current Council Policy 044: Shark Hazard Response (Attachment B).

CARRIED 8/0

 

Reasons:       The term “shark monitoring network” should be written in lower case as it is not a defined term.

The term ‘Fisheries’ is considered to be an informal term and the paragraph should be amended to refer precisely to the responsible State Government department.

Paragraphs 5.8(b) and 5.8(c) to be amended to use the words “Patrolled Beach” as it is a defined term.

Other minor amendments made to the clarity and readability of the Policy.

 

EXECUTIVE SUMMARY   

This report presents a revised Council Policy: Shark Hazard Response (the Policy) (Attachment A) with the current policy having been reviewed as part of the City’s overall review of its Council policies.

 

BACKGROUND

The existing Council policy: 044 Shark Hazard Response (Attachment B) was developed in October 2015. Upon review, officers consider the current policy contains information that is very much operational in nature.

 

The City has implemented a Policy Framework document, the purpose of which is to provide a structure for the development and maintenance of documents intended to guide the City’s approach to decision making, namely Council Policies, Operational Practices, Work Processes and Guidelines.

In early 2019, the City in conjunction with the Shire of Augusta Margaret River, developed and implemented an operational practice (OP) with the aim of providing a consistent local government approach when responding to shark attacks and sightings along the neighbouring coastline. The Shark Hazard Response OP was approved by the City’s Chief Executive Officer and came into force in March 2019.

OFFICER COMMENT

Under the City’s policy framework and structure, a Council policy should provide a strategic statement of the Council’s direction. Following a review of the current policy, it has been determined by officers that much of its content provides information more aligned to the operational functions of responding to shark attacks or shark sightings.

 


 

The Policy reflects the more strategic aspects of responding to a shark attack, with the operational content having been removed.  The removal of the operational content from the Policy will not impact on the City’s approach to shark attacks or sightings, as these processes are well documented in the City’s Shark Hazard Response OP.

Statutory Environment

In accordance with section 2.7(2)(b) of the Local Government Act 1995 (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 under the provisions of section 5.8 of the Act.

Relevant Plans and Policies

There are no relevant plans or policies to consider in relation to this matter.

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 ask that officers revise the Policy further taking into account any matters raised by the Council in relation to the City’s shark hazard response.

CONCLUSION

Following a review of the current policy: 044 Shark Hazard Response, it was determined the policy was largely operational in nature and duplicated much of what is already documented in the City’s Shark Hazard Response OP. A revised Policy is presented to Council for endorsement.

TIMELINE FOR IMPLEMENTATION OF OFFICER RECOMMENDATION

The Policy will be placed on the City’s website within one week of Council adoption.


Council

204

14 October 2020

12.1

Attachment a

Council Policy: Shark Hazard Response (Proposed)

 



Council

208

14 October 2020

12.1

Attachment b

Council Policy: 044 Shark Hazard Response (Current)

 





Council

210

14 October 2020

12.1

Attachment c

Council Policy: Shark Hazard Response (Proposed) with Committee Amendments

 



Council                                                                                      213                                                             14 October 2020

12.2           Policy and Legislation Committee - 23/09/2020 - REVIEW OF COUNCIL POLICY: LEGAL REPRESENTATION FOR COUNCIL MEMBERS AND EMPLOYEES

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

Governance Services

REPORTING OFFICER

Governance Coordinator - Emma Heys

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   Council Policy: Legal Representation for Council Members and Employees (Proposed)

Attachment b    Council Policy: Legal Representation for Council Members and Employees (Current)

 

This item was considered by the Policy and Legislation Committee at its meeting on 23/09/2020, the recommendations from which have been included in this report.

 

COMMITTEE RECOMMENDATION AND OFFICER RECOMMENDATION

Moved Councillor K Cox, seconded Councillor P Carter

That the Council adopts the revised Council policy: Legal Representation for Council Members and Employees at Attachment A, to replace the current Council policy ‘085: Legal Representation for Council Members and Employees’ at Attachment B.

 

There was opposition to the Committee Recommendation and Cr Hick moved the following amendments which were foreshadowed prior to the meeting:

 

Council Decision and amendment

C2010/110              Moved Deputy Mayor K Hick, seconded Councillor L Miles

 

That the Council adopts the revised Council policy: Legal Representation for Council Members and Employees at Attachment A, with the following amendments:

1.              Add the words “current or former” before “Council member or employee” to the definition of ‘Applicant’, and to paragraphs 5.1 and 5.6.

 

2.              Delete from the definition of ‘Approved Lawyer’ the point which reads “approved in writing by the Council or the CEO under delegated authority”, and amend paragraph 5.4 to read: “Legal representation must be provided by an Approved Lawyer and the engagement of an Approved Lawyer must be approved in writing by the Council or the CEO under delegated authority”.

 

3.              Delete the definition of ‘Legal Proceedings’ and any reference to a defined term Legal Proceedings in the body of the Policy.

 

4.              Add the defined term ‘Approved Lawyer’ to paragraph 5.6(c) and delete the words “(or law firm)” so that it reads: “the Approved Lawyer who is to be asked to provide the legal representation”.

 

5.              Add the words “to the best of the Applicant’s knowledge, the Applicant…” to paragraph 5.7(a) so that it reads: “a declaration by the Applicant that he or she has acted in good faith, and, to the best of the Applicant’s knowledge, the Applicant has not acted unlawfully or in a way that constitutes improper conduct in relation to the matter to which the application relates”.

 

6.              Amend paragraph 5.8 to replace the words “As far as possible” with the words “Other than in exceptional circumstances” so that it reads: “Other than in exceptional circumstances, the application is to be made before commencement of the legal representation to which the application relates”.

 

7.              Amend paragraph 5.9 to read:

“The Council must determine all applications made under this Policy. Applications to the Council must:

a.             be accompanied by a report prepared by the CEO; or

b.             where the CEO is the Applicant, the accompanying report must be prepared by an appropriate employee, generally a Director or senior governance employee”.

 

8.              Amend paragraph 5.10 to read:

“In determining an application, the Council may:

a.             refuse;

b.             approve; or

c.              approve subject to conditions”.

 

9.              Add the words “of approval of an application” and delete the words “but are not restricted to” from paragraph 5.11 so that it reads: “Conditions of approval of an application may include a financial limit and/or a requirement to enter into a formal agreement, including a security agreement relating to the payment, and repayment of legal representation costs”.

 

10.          Amend paragraph 5.12 to read:

“The Council, in approving an application in accordance with this Policy:

a.             must set a limit on the costs to be paid, based on the estimated costs in the application; and

b.             may also consider and approve additional costs in respect of the same matter”.

 

11.          Delete paragraph 5.13.

 

12.          Replace the words “Council members or employee” with “Applicant” in paragraphs 5.13, 5.17 and 5.17(b).

 

13.          Add the words “for urgent legal representation” and “for Council’s notification” to paragraph 5.16 so that it reads: “An application for urgent legal representation approved by the CEO under delegation is to be submitted for Council’s noting to the next ordinary meeting of the Council”.

CARRIED 8/0

 


 

The amendments to the Committee Recommendation were carried and the motion as amended became the substantive motion, which was then put to a vote:

 

Council Decision and AMENDED COMMITTEE Recommendation

C2010/111              Moved Councillor K Cox, seconded Councillor P Carter

 

That the Council adopts the revised Council policy: Legal Representation for Council Members and Employees at Attachment A, with the above additional amendments, to replace the current Council policy ‘085: Legal Representation for Council Members and Employees’ at Attachment B.

CARRIED 8/0

 

Reasons:       It should be expressly stated throughout the body of the Policy that the Policy applies to former Council members and employees, so the definition of Applicant, and paragraphs 5.1 and 5.6 should include this additional wording.

The final point in the definition of ‘Approved Lawyer’ is better contained in the body of the Policy.

The term “legal proceedings” has a common meaning and does not need to be a defined term (and should therefore be in lower case).

In certain contexts, the words “Council member or employee” is better replaced with the defined term “Applicant”.

Inclusion of the words “to the best of the Applicant’s knowledge, the Applicant…” in paragraph 5.7(a) reflects that an Applicant, where they have acted in good faith may have inadvertently breached a law without knowledge and that they should only need to declare to their best of knowledge that they have not acted unlawfully.

Other amendments made throughout to refer to defined terms (e.g. Approved Lawyer), and for greater clarity and readability.

 

EXECUTIVE SUMMARY

This report presents a revised Council policy: Legal Representation for Council Members and Employees (Attachment A) (the Policy) with officers recommending it replace the current Council policy ‘085: Legal Representation for Council Members and Employees’ (Attachment B).

 

BACKGROUND

Council policy ‘085: Legal Representation - Costs Indemnification Policy’ was implemented in 2008 and amended in 2012, with minor changes made to align the policy with the re-released Department of Local Government Guideline. Further changes were made to the policy in 2017, with the title amended to ‘Legal Representation for Council Members and Employees’. An update to the Council delegation relating to urgent legal representation was also made at this time.

 

The Policy was presented to the Policy and Legislation Committee at the meeting of 25 August 2020. The Committee requested minor amendments to the wording and for the Policy to be returned to the Committee for consideration at its next meeting.

OFFICER COMMENT

The Policy provides strategic guidance and clarity as to when and under what circumstances a Council Member and Employee of the City may receive assistance for legal representation.

 

The Policy has been transferred into the new Council policy template and reviewed by officers, with minor amendments proposed to improve readability and clarity. Additional amendments have also been made in response to feedback from the Policy and Legislation Committee, namely to amend the definition of an Approved Lawyer and to reword paragraphs 5.15 and 5.16 for readability.

Statutory Environment

In accordance with section 2.7(2(b) of the Local Government Act 1995 (the Act) it is the role of the Council to determine the local government 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 Department of Local Government has provided an Operational Guideline and model policy in relation to legal representation for Council members and employees. The Policy maintains alignment overall with this model policy.

 

The City has a policy framework which was developed and endorsed by Council in response to the recommendations of the 2017 Governance Systems 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 level have been identified.

Options

As an alternative to the proposed recommendation, the Council could require further amendments to the Policy.

CONCLUSION

A revised ‘Legal Representation for Council Members and Employees’ Council policy is presented for Council’s approval.

TIMELINE FOR IMPLEMENTATION OF OFFICER RECOMMENDATION

The Policy will be placed on the City’s website within one week of Council adoption.

 

 

 

 

 


Council

218

14 October 2020

12.2

Attachment a

Council Policy: Legal Representation for Council Members and Employees (Proposed)

 





Council

222

14 October 2020

12.2

Attachment b

Council Policy: Legal Representation for Council Members and Employees (Current)

 






Council                                                                                      225                                                             14 October 2020

14.             Engineering and Work Services Report

Nil


 

15.             Community and Commercial Services Report

Nil


Council                                                                                      226                                                             14 October 2020

18.             Motions of which Previous Notice has been Given

Nil

 

19.             urgent business

Nil

 

20.             Confidential Reports  

Nil

 

21.             Closure

The Presiding Member closed the meeting at 5.50pm.

 

 

 

 

THESE MINUTES CONSISTING OF PAGES 1 TO 227 WERE CONFIRMED AS A TRUE AND CORRECT RECORD ON Wednesday, 28 October 2020.

 

DATE:_________________  PRESIDING MEMBER:         _____________________________