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

CITY OF BUSSELTON

MINUTES FOR THE Policy and Legislation Committee MEETING HELD ON 26 May 2021

TABLE OF CONTENTS

ITEM NO.                                        SUBJECT                                                                                                                              PAGE NO.

1....... Declaration of Opening, acknowledgement of country and Announcement of Visitors. 2

2....... Attendance. 2

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

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

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

5.1          Minutes of the Policy and Legislation Committee Meeting held 28 April 2021. 3

6....... Reports. 4

6.3          PROPOSED COUNCIL POLICY: MANAGEMENT OF ALLEGED BREACHES OF BEHAVIOUR. 4

6.1          HOLIDAY HOME REGULATORY FRAMEWORK REVIEW... 19

6.2          REVIEW OF VARIOUS LOCAL LAWS. 69

7....... General Discussion Items. 144

7.1          CARETAKER POLICY. 144

8....... Next Meeting Date. 167

9....... Closure. 167

 


Policy and Legislation Committee                                  6                                                                         26 May 2021

MINUTES

 

MINUTES OF Policy and Legislation Committee HELD IN THE Committee Room, Administration Building, Southern Drive, Busselton, ON 26 May 2021 AT 10.00am.

 

1.               Declaration of Opening, acknowledgement of country and Announcement of Visitors

The Presiding Member opened the meeting at 10.02am.

 

The Presiding Member noted this meeting is held on the lands of the Wadandi people and acknowledged them as Traditional Owners, paying respect to their Elders, past and present, and Aboriginal Elders of other communities who may be present.

 

2.               Attendance 

Presiding Member:

 

Members:

 

Cr Ross Paine

 

Cr Grant Henley

Cr Kate Cox

Cr Kelly Hick

Cr Lyndon Miles

 

Officers:

 

Mr Mike Archer, Chief Executive Officer

Mr Paul Needham, Director, Planning and Development Services

Mr Tony Nottle, Director, Finance and Corporate Services

Ms Lee Reddell, Manager, Development Services

Mrs Emma Heys, Governance Coordinator

Ms Briony McGinty, Legal Officer

Ms Joanna Wilkinson, Planning Officer

Ms Melissa Egan, Governance Officer

 

 

Apologies:

 

Nil

 

3.               Public Question Time

Nil

 

4.               Disclosure Of Interests

Cr Kelly Hick declared an impartiality interest in relation to Item 6.1 ‘Holiday Home Regulatory Framework Review’.


 

5.               Confirmation and Receipt Of Minutes

5.1             Minutes of the Policy and Legislation Committee Meeting held 28 April 2021

Committee Decision

PL2105/396            Moved Councillor K Cox, seconded Councillor L Miles

That the Minutes of the Policy and Legislation Committee Meeting held 28 April 2021 be confirmed as a true and correct record.

CARRIED 5/0

  

 

 


 

10.04am:       At this point in the meeting, the Presiding Member agreed that Item 6.3 ‘Proposed Council Policy: Management of Alleged Breaches of Behaviour’ would be moved forward for the benefit of officers presenting the item.

6.               Reports

6.3             PROPOSED COUNCIL POLICY: MANAGEMENT OF ALLEGED BREACHES OF BEHAVIOUR

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 budgets, strategies, plans and policies (excluding local planning policies); funding, donations and sponsorships; reviewing committee recommendations

VOTING REQUIREMENT

Simple Majority

ATTACHMENTS

Attachment a   Proposed Council policy: Management of Complaints of Alleged Breaches of Behaviour

Attachment b    Amended Complaints Form

Attachment c    Proposed Council policy: Management of Complaints of Alleged Breaches of Behaviour with Committee Amendments

 

OFFICER RECOMMENDATION

That the Council:

1.         Adopt the proposed Council Policy: Management of Alleged Breaches of Behaviour (Attachment A) (the Policy); and

2.         Approve the amended form in which complaints of alleged breaches of the Code may be received (Attachment B) (the Form).

 

Committee RECOMMENDATION

PL2105/397            Moved Councillor G Henley, seconded Councillor K Hick

That the Council:

1.         Adopt the proposed Council Policy: Management of Alleged Breaches of Behaviour (the Policy) inclusive of Committee amendments as per Attachment C (as circulated to the Committee); and

2.         Approve the amended form in which complaints of alleged breaches of the Code may be received (Attachment B) (the Form).

CARRIED 5/0

Reasons:              Amendments to the proposed Policy, including additional defined terms and expanded compliance detail, was requested by the Committee for improved clarity around process. Minor administrative edits were also made for improved readability.


 

EXECUTIVE SUMMARY

This report presents a proposed Council policy: Management of Alleged Breaches of Behaviour (Attachment A) (the Policy) for Council endorsement. This report also seeks Council approval of the amended form in which complaints of alleged breaches may be received (Attachment B) (the Form).

BACKGROUND

The Local Government (Model Code of Conduct) Regulations 2021 (Regulations) were gazetted and came into effect on Wednesday 3 February 2021. Local governments are required to adopt a Code of Conduct for Council Members, Committee Members and Candidates (the Code) within three months of gazettal (being 3 May 2021), as per Section 5.104 of the Local Government Act 1995 (the Act).  Council adopted the Code at its Council meeting of 28 April 2021. 

Under Section 5.103 of the Act, the Regulations prescribe a Model Code which includes general principles and behaviours for Council Members, Committee Members and Candidates. Alleged breaches of Part 3 of the Code ‘Behaviours’ are subject to a complaints process, to be determined and managed by the local government. Officers have developed a Council Policy: Management of Complaints of Alleged Breaches of Behaviour (the Policy) to deal with alleged breaches of behaviours.

Officers presented a proposed council policy: ‘Investigation of Complaints of Alleged Breaches of Behaviour’ to the Policy and Legislation Committee at its meeting of 28 April 2021. Committee members requested the item be deferred to allow officers undertake further review of the policy and return it for consideration to the meeting of the 26 May 2021.

Under the Regulations, local governments are required to approve a complaint form in which complaints may be received, which Council did on 24 February 2021 (C2102/032). Officers have amended the Form to align with the recently released WALGA template and are seeking Council’s approval of the amended form.

OFFICER COMMENT

In accordance with Part 3 of the Code, a person may make a complaint alleging a breach of the behaviour(s) set out in the Code. The procedure for dealing with a complaint may be determined by the local government, to the extent that it is not provided for in the Code. The Policy has been developed to establish a clear process for the management of complaints of alleged breaches of behaviour. The Policy proposes to appoint an experienced third party/parties to investigate complaints in order to address potential conflicts of interest arising from the CEO or employees of the City being involved in investigating complaints. The Policy provides a set of guidelines for the investigation process and outlines how the findings are presented to Council.

Officers believe a stand-alone policy that deals with the overall management of complaints is preferable and cleaner than including the process within the Code itself.

An amended form for receipt of complaints of alleged breaches has been modelled on the template form recently provided by WALGA (Attachment B). The amended form allows a complainant to detail the specific sections of the Code that are alleged to have been breached and to outline if, in accordance with paragraph 5.10 of the Policy, they would be willing to engage in mediation prior to formal investigation of the complaint.


 

Statutory Environment

Sections 5.103 and 5.104 of the Local Government Act 1995 provides for regulations that prescribe a Model Code of Conduct and the requirement for local governments to adopt the model code.

Schedule 1, Division 3, clause 11(3) of the Regulations requires Council to authorise one or more persons to receive complaints and withdrawals of complaints, while clause 11(2)(a) requires the approval of a form for the receiving of complaints.

Relevant Plans and Policies

The officer recommendation aligns to the City of Busselton Code of Conduct for Council Members, Committee Members and Candidates.

Financial Implications

There will be financial implications associated with the engagement of an investigator as outlined in the Policy. Funding this resource will require an allocation in the 2021/2022 budget. It is proposed that a figure of $5,000 is allocated to start with and adjusted as required.

Stakeholder Consultation

The Western Australian Local Government Association (WALGA) have recently developed and released a Code of Conduct Behaviour Complaints Management Policy. The Policy largely aligns with WALGA’s policy, noting the City has proposed the appointment of an investigator in lieu of establishing a Complaints Committee in accordance with section 5.8 of the Act.

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 to:

1.         amend the Policy; or

2.         not adopt a complaints policy and allow the City’s appointed complaints officer to manage complaints – noting the potential for conflicts of interest to arise.

 

CONCLUSION

Officers have developed a Council Policy: Management of Complaints of Alleged Breaches of Behaviour to deal with complaints of alleged breaches of behaviours.

TIMELINE FOR IMPLEMENTATION OF OFFICER RECOMMENDATION

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

 


Policy and Legislation Committee

8

26 May 2021

6.3

Attachment a

Proposed Council policy: Management of Complaints of Alleged Breaches of Behaviour

 





Policy and Legislation Committee

11

26 May 2021

6.3

Attachment b

Amended Complaints Form

 





Policy and Legislation Committee

18

26 May 2021

6.3

Attachment c

Proposed Council policy: Management of Complaints of Alleged Breaches of Behaviour with Committee Amendments

 




 

 


Policy and Legislation Committee                                  20                                                                      26 May 2021

10.48am:              At this time, Mrs Heys and Mr Nottle left the meeting.

 

10.48am:            At this time, Mr Needham, Ms Reddell and Ms Wilkinson entered the meeting.

 

6.1             HOLIDAY HOME REGULATORY FRAMEWORK REVIEW

STRATEGIC GOAL

4. ECONOMY Diverse, resilient, prosperous

STRATEGIC OBJECTIVE

4.1 An innovative and diversified economy that provides a variety of business and employment opportunities as well as consumer choice.

SUBJECT INDEX

Local Planning Scheme 21 Amendments

BUSINESS UNIT

Strategic Planning

REPORTING OFFICER

Planning Officer - Joanna Wilkinson

AUTHORISING OFFICER

Director, Planning and Development Services - Paul Needham

NATURE OF DECISION

Legislative: adoption of “legislative documents” such as local laws, local planning schemes and local planning policies

VOTING REQUIREMENT

Simple Majority

ATTACHMENTS

Attachment a   Local Planning Policy 4.1

Attachment b    Local Law

Attachment c    Government Response to 2019 Parliamentary Inquiry

Attachment d   Holiday Home Clusters

Attachment e    Option 1 - Exclusion Area

Attachment f    Option 2 - Exclusion Area  

 

DISCLOSURE OF INTEREST

Date

26 May 2021

Meeting

Policy and Legislation Committee

Name/Position

Cr Kelly Hick, Deputy Mayor

Item No./Subject

Item No. 6.1 ‘Holiday Home Regulatory Framework Review’.

Type of Interest

Impartiality Interest

Nature of Interest

I am the owner and manager of a tourism accommodation business Dunsborough Ridge Retreat which is located at Ocean View Drive, Quindalup

 

OFFICER RECOMMENDATION

That the Council supports a review of the City’s regulatory framework for holiday homes, as follows:

1.         Indicates that, subject to further consultation, it intends to implement the following opportunities for change:

(a)       Revise standards for the size and design of properties, relative to maximum permissible occupancy numbers, by:

(i)        Initially in local planning policy, and subsequently in the Scheme, introduce a maximum occupant restriction for Multiple Dwellings, to be no more than four occupants.

(ii)       Initially in local planning policy, and subsequently in the Scheme, introduce further occupant restrictions based on lot size, as follows:

The maximum number of occupants under the ‘Holiday Home (Single House)’ or ‘Holiday Home (Grouped Dwelling)’ use classes in the Residential zone is:

i.          10 occupants for lots greater than 350m²; or

ii.         7 occupants for lots 260m² - 350m²; or

iii.        4 occupants for lots less than 260m².

 

(b)       Revise and introduce new requirements and expectations for managers, by:

(i)        Reducing the amount of time in which a manager must respond to any contact relating to the holiday home, from 24 hours to 12 hours.

(ii)       Introducing a new clause requiring managers to reside within a 30 minute travel time from the holiday home.

(iii)      Strengthening and clarifying the conditions of registration, so that the contact details of the manager are shown on a sign that can be visible from the street.

(iv)      Strengthening and clarifying the conditions of registration, so that the manager is required to resolve complaints and ensure compliance at the premises.

(c)       Introducing requirements and expectations for occupants and their guests, by revising the standard conditions of registration, so that a code of conduct is required that sets out expectations for the management of occupants and the guests of occupants, and requiring managers to communicate the code to the hirer, obtain their acknowledgement, and ensuring the code is clearly displayed within the holiday home.

(d)       Introducing requirements for the management of dogs, by introducing conditions of registration that do not allow dogs to be left unattended at holiday homes.

(e)       Developing a Council Policy to set out how the City intends to implement the Local Law, and to provide guidance to officers and stakeholders.

2.         Undertakes consultation with the community and industry stakeholders regarding the opportunities for change, and any other opportunities that may be identified through consultation.

3.         Develops a Directions Paper to assist with consultation.

4.         After consultation, will consider a further report setting out:

(a)       the outcomes of the consultation process; and

(b)       more detailed recommendations about what opportunities should be pursued, and how these opportunities should be implemented.

 

Committee Recommendation

PL2105/398            Moved Councillor G Henley, seconded Councillor K Cox

That the Council supports a review of the City’s regulatory framework for holiday homes, as follows:

1.         Indicates that, subject to further consultation, it intends to implement the following opportunities for change:

(a)       Revise standards for the size and design of properties, relative to maximum permissible occupancy numbers, by:

(i)        Initially in local planning policy, and subsequently in the Scheme, introduce a maximum occupant restriction for Multiple Dwellings, to be no more than four occupants.

(ii)      Initially in local planning policy, and subsequently in the Scheme, introduce further occupant restrictions based on lot size, as follows:

The maximum number of occupants under the ‘Holiday Home (Single House)’ or ‘Holiday Home (Grouped Dwelling)’ use classes in the Residential zone is:

i.          10 occupants for lots greater than 350m²; or

ii.         7 occupants for lots 260m² - 350m²; or

iii.       4 occupants for lots less than 260m².

(b)       Revise and introduce new requirements and expectations for managers, by:

(i)        Reducing the amount of time in which a manager must respond to any contact relating to the holiday home, from 24 hours to 12 hours.

(ii)      Introducing a new clause requiring managers to reside within a 30 minute travel time from the holiday home.

(iii)     Strengthening and clarifying the conditions of registration, so that the contact details of the manager are shown on a sign that can be visible from the street.

(iv)     Strengthening and clarifying the conditions of registration, so that the manager is required to resolve complaints and ensure compliance at the premises.

(c)       Introducing requirements and expectations for occupants and their guests, by revising the standard conditions of registration, so that a code of conduct is required that sets out expectations for the management of occupants and the guests of occupants, and requiring managers to communicate the code to the hirer, obtain their acknowledgement, and ensuring the code is clearly displayed within the holiday home.

(d)       Introducing requirements for the management of dogs, by introducing conditions of registration that do not allow dogs to be left unattended at holiday homes.

(e)       Developing a Council Policy to set out how the City intends to implement the Local Law, and to provide guidance to officers and stakeholders.

(f)    Exclude some residential areas from holiday home use, by introducing areas of     exclusion as shown in Option 1 – Exclusion Area (Attachment E).

2.         Undertakes consultation with the community and industry stakeholders regarding the opportunities for change, and any other opportunities that may be identified through consultation.

3.         Develops a Directions Paper to assist with consultation.

4.         After consultation, will consider a further report setting out:

(a)       the outcomes of the consultation process; and

(b)       more detailed recommendations about what opportunities should be pursued, and how these opportunities should be implemented.

CARRIED 5/0

 

Reasons:              The Committee supports the opportunity to consult with the community on the matter of excluding holiday homes in some residential areas, and will use the outcomes of this consultation to form an opinion on whether or not the idea should be progressed as a formal change.


 

EXECUTIVE SUMMARY

In 2012, three interrelated key instruments were introduced by Council to regulate holiday homes – these included a local law, provisions in the local planning scheme, and a local planning policy. The local planning policy has since been reviewed and amended, however the local law has remained unchanged, and the Scheme provisions were carried over in 2014, without substantiative change, into Local Planning Scheme No. 21.

 

Over time, issues relating to holiday homes have arisen that may not be sufficiently addressed through the current regulatory framework. The purpose of this report is to initiate a review of the three key instruments, with an aim to work toward a framework that provides more effective regulation.

 

It is recommended that the Council supports consultation on a range of opportunities for change. It is envisaged that, following the consultation process, the Council would consider whether (and what) formal changes should be made – which would entail development of more detailed proposals and further consultation.

 

BACKGROUND

Holiday homes have been part of the landscape and lifestyle and lifestyle in Busselton, Dunsborough, Yallingup, Eagle Bay, and many other places in Western Australia for many decades. However the scale and character of holiday homes has changed over time, principally due to a significantly increased population in the Perth metropolitan area (the City’s main tourism market), greater mobility and affordability in interstate and international travel (other than over the last 18 months or so), and the emergence of online booking platforms such as Airbnb. This review also coincides in with the statutory review of the City’s Holiday Homes Local Law.

 

Current Regulatory Approach

In effect, the three key regulatory instruments operate in the following manner:

1.         Local Planning Scheme No. 21 (the Scheme) - any proposed holiday home must be granted development approval prior to use. The number of occupants is capped depending on whether the proposal is for a grouped/multiple dwelling or a single house, and holiday homes are prohibited in some zones (further details are provided under the heading ‘Statutory Environment’).

2.         Local Planning Policy 4.1 Holiday Homes (LPP 4.1) - provides guidance for the assessment of a development application, with due regard given to location, utility servicing, car parking, dwelling design, and bushfire management (Attachment A).

3.         Holiday Homes Local Law 2012 (Local Law) - once development approval is granted, ongoing operation of the land use must include preliminary registration and a regular renewal of the registration, the nomination of manager and acting manager, and adherence to conditions relating to the orderly and proper use of the holiday home (Attachment B).

 

These instruments took several years to develop and become operational and, with the exception of LPP 4.1, have not been changed since they were introduced.

 


 

Development of the Regulatory Framework

The City’s current regulatory framework emerged from work that began as early as 2002. This was via Amendment No. 46 (Amd 46) to Town Planning Scheme No. 20 (TPS 20). The proposal was delayed, though, for a variety of reasons, including a broader State Government review into the issue. By 2009, the Western Australian Planning Commission (WAPC) had developed Planning Bulletin 99: Holiday Homes Guidelines (PB 99), and the Minister for Planning directed the Council to modify and readvertise Amd 46 in a manner consistent with PB 99.

 

After 2002, there was a noticeable shift in the nature of holiday homes, from a cultural and lifestyle option to an increasingly commercial enterprise. By 2010 it was estimated that there were approximately 500 properties in the district being used as holiday homes, making them an important part of the local tourism industry and economy. Holiday homes at that time were, in most respects, unregulated, and in some instances they were having significant impacts on the character and amenity of residential areas.

 

It was recognised by Council that a scheme amendment alone would not be sufficient to provide effective regulation. In 2010 some draft general principles, for inclusion in a local law and local planning policy, were endorsed by Council for public consultation (C1001/053). It was in that environment, in late 2012, that the Local Law was made, Amd 46 to TPS 20 (in modified form, as directed by the Minister for Planning) was approved, and the holiday homes local planning policy provisions were introduced into the broader Local Planning Policy 7 – Commercial and Industrial Development Policy (now LPP 4.1). By mid-2013, there were around 500 registered holiday homes in the District.

 

At different points in the journey from 2002 to 2012, the Council had taken positions that holiday homes should remain unregulated; should be prohibited entirely; to finally adopting a position that they should be regulated, but not prohibited.

 

Since the introduction of the current framework, the Local Law has remain unchanged, and the Scheme provisions were carried over in 2014, without substantiative change, from scheme No. 20 to scheme No. 21. LPP 4.1 has been revised three times, in the following manner:

·        2015 - the word “preferred” was removed from the two areas in which holiday homes could be considered for approval, although both areas were retained. Dunsborough Lakes was incorporated into the area in which holiday homes could be considered in the Residential zone.

·        2018 - the two areas in which holiday homes could be considered for approval were removed, effectively removing all restrictions in the Residential zone; more comprehensive bushfire provisions were introduced; and revised formatting, ‘deemed-to-comply’ and ‘performance criteria’ were introduced.

·        2020 - the majority of bushfire provisions were removed and reference to the newly created Bushfire Local Planning Policy was introduced.

 

Related to the regulatory framework, a further Council decision (implemented at the start of the 2018/19 financial year) was the introduction of a five per cent increase in the ‘rate in the dollar’ for rating purposes (triggered by registration), with a transition to a ten percent higher ‘rate in the dollar’ in the 2019/20 financial year (which meant that holiday homes were rated at the same rate level as most other tourism accommodation).

 


 

Current Experience in the City of Busselton

In March 2021, there were 983 registered holiday homes in the District, and it is estimated that approximately 50 properties were being let for the purpose of short-term accommodation, without planning and/or registration approval. As resources permit, these properties are subject of compliance activity.

 

In April, registration renewal letters were sent out for the 2021/22 financial year, and by mid-May there were:

·        596 registered holiday homes until June 2022;

·        375 registrations pending renewal (until June 2022);

·        63 registration applications received, pending development approval or clearance of the conditions of approval.

 

After renewal letters were sent out in April, 23 registrations were cancelled because of:

·        Difficulties in finding cleaning staff;

·        Concerns about illegal activity;

·        Returning the property to the long-term rental market.

 

Further cancellations have occurred due to changes in property ownership, although new owners may apply for registration without also needing to reapply for development approval.

 

Issues and Concerns

Following their emergence during the late 2000s, and the rapid rise in popularity of online booking platforms such as AirBnB, Stayz and Booking.com, there were concerns that an increasing number of holiday homes were being advertised without having first obtained development or registration approval. In early 2019, a trial (three month) full time officer position was created to identify unapproved holiday homes, and to pursue compliance action. This was found to be an effective means of addressing this issue, and the position was retained on a permanent part-time basis.

 

Unauthorised holiday homes are detected through a quarterly reported provided by BnBGuard, which cross references properties that have been granted approval, against properties that are being advertised by 13 online booking platforms. BnBGuard is able to detect properties that are being advertised but are not approved, and provide in most cases the exact address (online advertisements will show an approximate location only).

 

With a single officer dedicated to monitoring approval of holiday homes, a better understanding has emerged of current issues and/or concerns raised by the community. The following is a summary of complaints received in 2020, and for January – April 2021.

 

Complaints received

No. properties

Properties with multiple complaints

2020

53

47

6

2021 (Jan – April)

24

22

2

 


 

Typically, the nature of these complaints include:

·        Listings of properties that don’t have development and/or registration approval.

·        Location of holiday homes in residential areas, with concerns around residential amenity (noise, behavior, nuisance), safety and security, waste management, car parking.

·        The number of people that are present at a property at any one time, whether they be the occupants or guests of occupants, i.e. ‘party houses’.

·        The number of vehicles parked at a property at any one time, being greater than the number of car parking bays available (including boats, campervans etc.).

·        Dogs that have been left unattended in an unfamiliar environment, and become distressed (barking and whining). In some instances this includes multiple dogs.

·        Lack of ability for a complainant to directly contact the manager, meaning that the reason for complaint may have passed by the time contact is made.

 

These issues were consistent with those raised by other local governments during the 2019 State Parliamentary inquiry into short term accommodation, which is discussed in further detail below. It is also considered that there is an under-reporting of complaints to the City.

 

Approaches Adopted in Other Local Government Jurisdictions

Approximately 20 local governments in Western Australia have been considered, and it is evident that the adopted approaches vary greatly. The least regulatory is where there are no formal provisions in place, for example in Subiaco and Mandurah.

 

Many local governments have minimal provisions in their local planning scheme, including:

·        a land use definition; and/or

·        permissibility set out in the zoning table.

 

Across the various local governments, holiday homes are generally a discretionary (or discretionary subject to advertising) use in the Residential, Rural Residential, Centre, and Rural zones. Throughout all the local governments reviewed, the only zone in which holiday homes are a ‘P’ (permitted) use is the Tourism zone; they are always prohibited in Industrial zones.

 

Further guidance on the assessment of development applications is often set out in a local planning policy. The policies reviewed provide guidance on some or all of the following matters:

·        Preferred areas in which a holiday home can be located.

·        Requirements around manager/responsible person contact details, including the display of these details on a sign which is visible from the street.

·        Requirement for a manager to respond to complaints within a set time period, and to reside within a reasonable distance of the subject property.

·        Use of ancillary accommodation.

·        Car parking.

·        Utility servicing (water, effluent).

·        Waste management.

·        Lot size and dwelling design, including maximum number of people per bedroom, and outdoor living and screening.

·        Bushfire provisions.

·        Strata company requirements.

·        Management plan, including details such as:

o   how bookings are made (marketing and advertising);

o   manager details (contact phone number);

o   duties of manager;

o   complaints procedure;

o   code of conduct for guests;

o   control of noise and other disturbances;

o   control of anti-social behavior;

o   security of occupants, guests of occupants, and neighbours;

o   car parking for occupants and guests of occupants, including maximum number of vehicles.

 

In some instances, local governments have opted to include some of the provisions listed above as development standards in the local planning scheme (e.g. Augusta-Margaret River, Exmouth).

 

Fremantle and Wanneroo have developed local laws but do not have a local planning policy. These two local laws do not contain any significant provisions that are different from the Busselton Local Law.

 

The Shire of Noosa in Queensland is currently advertising a draft local law which would require occupants to comply with several ‘conditions of behaviour’, collectively called a code of conduct. This would make the manager responsible for ensuring compliance with the code of conduct, and responding to complaints within 30 minutes of receiving the complaint.

 

It is apparent from the review that, while the means of regulating holiday homes may vary, the matters to be addressed by the local government and landowner are fairly consistent.

 

State Government Policy Position

In 2019, the State Parliamentary Legislative Assembly Economics and Industry Standing Committee conducted an inquiry titled Levelling the Playing Field: Managing the impact of the rapid increase of Short-Term Rentals in Western Australia (the 2019 Inquiry).

 

This was prompted by “a groundswell of public agitation from the South West of the State, voicing concerns about the emergence of online accommodation platforms.” The 2019 Inquiry resulted in a record number of submissions from around the State.

 

The Committee made 10 recommendations. The State Government provided a response to the recommendations on 12 February 2020, and relevant to this review, committed to address the registration of holiday homes (Recommendation 7) at a macro level, by undertaking the following action:

The establishment of an inter-agency working group, to develop legislative or regulatory mechanisms to require the display for a valid registration number for short-term rentals [holiday homes] advertised on online booking platforms.

 

The full list of recommendations and the extended State Government response can be found at Attachment C.

 

At the time of writing this report, none of the recommendations from the 2019 Inquiry have been actioned to the extent that there has been any change to the existing state-level regulatory framework. Should they be actioned, it is considered there will be no significant impact on the City’s regulation of holiday homes, except that compliance should be a simpler process.

 

This review is mindful of the 2019 Inquiry, and does not seek to pre-empt the outcomes of the Government response. Instead, it aims to explore options that will complement State-level regulatory controls.

OFFICER COMMENT

Through research and informal discussion with a range of stakeholders, as well as a discussion with the Policy and Legislation Committee, a range of ‘opportunities for change’ have been identified that the Council may wish to consider:

1.         Exclude some residential areas from holiday home use.

2.         Revise standards for the size or design of properties relative to maximum permissible occupancy numbers.

3.         Change requirements and expectations for holiday home managers.

4.         Change requirements and expectations for occupants and the guests of occupants.

5.         Introduce controls on dogs being brought to holiday homes.

6.         Temporary development approvals.

7.         Develop a Council Policy to set out how the City intends to implement the Local Law.

 

Each of these is outlined and discussed below.

 

1.    Exclude some residential areas from holiday home use.

Following the introduction of the current regulatory framework, there was an interim period when landowners who had been using their property as a holiday home were able, regardless of location, to apply for development approval. That interim period ended in mid-2013, and between then and 2018 holiday homes were generally not permitted on Residential-zoned land south of Bussell Highway, or west of Cape Naturaliste Road.

 

The residential area restrictions were removed in 2018, and since then there have been a small number of approvals in the previously restricted area. An exception to this is Dunsborough Lakes, which became a ‘permitted’ area in 2015, and a higher number of approvals have been granted. Attachment D provides a visual demonstration of holiday homes across the District that have been granted development approval, and that are currently registered.

 

An opportunity exists to exclude some residential areas from holiday home use. There are several reasons why this might be introduced:

a)         PB 99 outlines that holiday homes are appropriate in areas associated with high tourism amenity. In the City of Busselton, this includes areas in close proximity to key tourist attractions such as beaches, town centres, or rural areas.

a)         PB 99 also discusses the potential conflict between holiday homes and the amenity of long-term residential dwellings. Conflict can occur as a result of issues such as noise, behavior, nuisance, safety and security, waste management, car parking.


 

b)        The ‘local sense of community’ can be eroded by the occurrence of too many holiday homes, and as a result of:

·        lack of neighbourhood support network during times of emergency or crisis, and passive surveillance for increased security and safety;

·        visitor disregard for the safety and security of children (or elderly) living in the street, and dangers associated with outdoor play, walking/cycling in areas without footpaths etc;

·        excessive noise/partying and visitor lack of understanding about the lifestyle of nearby residents, particularly those who are shift workers (or even just having to work the following day);

·        a sense that one’s own home is not a place of sanctuary/relaxation because of the impact from nearby holiday homes.

c)         Housing availability and affordability can be affected by holiday homes. The 2019 Inquiry reported that there is some evidence of this occurring in the South West, however it found that “the impact of short-term letting on WA’s long-term rental market seems minimal.” That may have changed in the last 12 months, but may not be an issue that will persist in the long-term.

 

The opportunities for change include:

 

Opportunity 1.1:

Introduce areas of exclusion. Potential areas of exclusion are shown at Attachments E and F.

 

Opportunity 1.1 could be implemented by: 

·        Modifying the Scheme Zoning Table, which could clearly define a holiday home as an ‘X’ (prohibited) use in relevant zones, meaning that no discretion in a prohibited area could be exercised; and

·        Introducing an ‘Additional Use’ right for those areas where holiday homes are otherwise an ‘X’ use (effectively ‘excluding’ some areas and ‘including’ others); or

·        Reintroduce area designations through the LPP, meaning that a discretion to approve holiday homes in non-preferred areas could still exist.

 

If new exclusion areas were introduced through the Scheme, the (already) approved holiday homes in non-permitted areas would become ‘non-conforming’ uses. Provided that a registration remained current, then the non-conforming use right would also remain current.

 

Officers do not recommend support for Opportunity 1.1, for the following reasons:

a)         This may result in a greater concentration of holiday homes within some areas;

b)        The relationship between total number of approvals and management of individual sites is not clearly defined, i.e. a greater number of holiday homes does not necessarily result in a greater number of poorly managed properties;

c)         The difficulty in defining permitted/not permitted areas with a simple, understandable boundary;

d)        A perception around lack of fairness in that some areas may be excluded from holiday homes and not others;

e)        Conversely, a perception around lack of fairness in that ‘economic opportunity’ may be permitted in some areas and not others;

f)         A lack of certainty for investors who have purchased a property with the intent to apply for holiday home use.

 

Nonetheless, Council may decide to support this opportunity for change.

 

2.    Revise standards for the size or design of properties relative to maximum permissible occupancy numbers.

This mechanism is currently applied through the Scheme and LPP, with restrictions applied through land use definitions (limiting occupancy numbers based on dwelling type), and dwelling design (limiting occupancy numbers through the total number of bedrooms, and area of personal use within a bedroom).

 

An opportunity exists to strengthen these standards by revising land use definitions, and by introducing a new standard relating to the lot size.

 

Reasons for doing this might include:

a)         Grouped and multiple dwellings are primarily located in urban areas, on smaller lots and with fewer car parking spaces. Currently there is not a large stock of multiple dwellings in the City (permitted only in Centre zones), however this is becoming a more frequent type of development proposal. By capping the occupancy numbers through land use definitions, this is one additional means of restricting the number of occupants and guests of occupants who visit these sites.

b)        Currently, the LPP requires a 350m² exclusive use area for a holiday home that is a single house. 350m² equates to R25 density or less, and therefore this provision doesn’t take into account areas that are coded R30 (minimum area 260m²) or greater. It is proposed that this point is clarified and strengthened through introduction into the Scheme, and by introducing maximum occupancy numbers depending on lot size. Furthermore, given nature of complaints that arise in the Residential zone (noise, parking, security etc), the maximum number of occupants could be capped at 10 in the Residential zone – currently, a maximum of 12 occupants may be approved. The provision is based on lot size rather than residential coding because a lot coded at a higher density may not have been subdivided into the minimum allowable lot size.

 

The opportunities for change include:

 

Opportunity 2.1:

Initially in the local planning policy, and subsequently in the Scheme, introduce a maximum occupant restriction for Multiple Dwellings, to be no more than four occupants.

 

Opportunity 2.2:

Initially in the local planning policy, and subsequently in the Scheme, introduce further occupant restrictions based on lot size, as follows:

 

The maximum number of occupants under the ‘Holiday Home (Single House)’ or ‘Holiday Home (Grouped Dwelling) use classes in the Residential zone is:

(a)       10 occupants for lots greater than 350m²; or

(b)      7 occupants for lots 260m² - 350m²; or

(c)       4 occupants for lots less than 260m².

 

Officers recommend support for Opportunities 2.1 and 2.2.

 

3.    Change requirements and expectations for holiday home managers.

The Local Law requires that a manager and acting manager must be nominated, and if an occupant or guest of the occupant breaches a condition of registration, then the manager must terminate the occupant’s tenancy. The manager must be contactable at all times, and in any event within 24 hours.

 

In the instances where managers have provided their contact details to neighbours, then any complaints can be directed to the manager. Where no contact details are available, complaints about holiday homes are directed to the City, and in turn the City informs the manager.

 

Many other local governments require a manager to be contactable within 12 hours, and to reside within close proximity to the holiday home (this varies between a 10 minute and 30 minute drive). Some also require that a manager’s details are to be displayed to the public on a sign that is visible from the street.

 

Opportunities exist to improve the requirements and expectations of managers, and particularly response times, through the Local Law, which in some cases may require an amendment to the Local Law.

 

The opportunities for change include:

 

Opportunity 3.1:

Reduce the amount of time in which a manager must respond to any contact relating to the holiday home, from 24 hours to 12 hours.

 

Opportunity 3.2:

Introduce a new clause requiring managers to reside within a 30 minute travel time from the holiday home.

 

Opportunity 3.3:

Strengthen and clarify the conditions of registration, so that the contact details of the manager are shown on a sign that can be visible from the street.

 

Opportunity 3.4:

Strengthen and clarify the conditions of registration, so that the manager is required to resolve complaints and ensure compliance at the premises.

 

Officers recommend support for Opportunities 3.1 – 3.4.

 

4.    Change requirements and expectations for occupants and their guests.

The Local Law includes conditions of registration that can cover matters such as the maximum number of occupants and their guests; and the provision of parking.

 

An opportunity exists to strengthen and clarify the requirements and expectations for the management of occupants and their guests, in the form of a management plan. Management plans are a control measure used by a number of other local governments, and they are used by the City when issuing conditions of development approval for other types of land uses. A management plan could include matters that relate to:

·        Manager contact details, duties, obligations, and complaints procedure;

·        Maximum number of occupants and guests;

·        Code of conduct for guests;

·        Control of noise, light spill and other disturbances;

·        Control of anti-social behavior;

·        Security of occupants, guests of occupants, and neighbours;

·        Car parking for occupants and guests of occupants, including maximum number of vehicles;

·        Management of waste.

 

An alternate or complementary opportunity exists to strengthen and clarify the requirements and expectations for the management of occupants and their guests, in the form of a code of conduct. The Noosa Shire Council is currently advertising a draft local law which would require occupants to comply with several ‘conditions of behaviour’, collectively called a code of conduct.

 

The code of conduct would outline minimum behavioural standards for guests to maintain the residential amenity of surrounding permanent residents. If implemented, it would be the manager’s responsibility to make occupants aware of the code of conduct, and to have a copy available within the premises. The manager would be responsible for enforcement. A code of conduct could include matters that relate to:

·        The parking of vehicles within the premises boundary, in designated bays, and not causing a nuisance or inconvenience to adjoining properties.

·        The use of the premises, including all outdoor areas, in a way that does not detrimentally affect neighbouring properties through noise, nuisance, unacceptable behaviour, overlooking or light spill.

·        Sleeping or camping on the premises in a tent, caravan, campervan or similar.

·        Management of pets so they don’t cause a nuisance (including a noise nuisance).

·        Disposal of waste.

 

It is considered by officers that the Local Law is the preferred means of introducing this type of change, as it would then become part of the registration/renewal process, subject to regular opportunity for review, rather than being reviewed once only at development approval stage.

 

Options for the implementation of this change include:

 

Opportunity 4.1:

Revise the standard conditions of registration, so that a management plan is required that sets out expectations for the management of the property.

 

Opportunity 4.2:

Revise the standard conditions of registration, so that a code of conduct is required that sets out expectations for the management of occupants and the guests of occupants.

 

Officers recommend support for Opportunity 4.2, but not Opportunity 4.1, for the following reasons:

a)         A code of conduct provides a set of acceptable standards that would be applicable regardless of location; a management plan would require some elements to be included that would be specific to individual sites.

b)        The checking of management plans, during the process of annual registration renewal, would result in a significant impact on officer workloads, and could result in inconsistent approaches that could create uncertainty for all parties.

c)         Some of the matters that would be included in a management plan, could also be resolved in other ways. For example, the expectations and requirements of managers as outlined in Opportunities 3.1 – 3.4 above; or, by revising the standard conditions of registration to limit the maximum number of vehicles that can be parked at a property.

d)        Other matters that would be included in a management plan, could also be dealt with, equally as effectively, through a code of conduct.

e)        A clear expectation would be set that requires managers to display, receive acknowledgement from occupants, and enforce a code of conduct.

f)         Overall, it is considered that a more consistent approach would be achieved through the use of a code of conduct rather than a management plan.

 

5.    Introduce controls on dogs being brought to holiday homes.

Holiday homes are often regarded as a ‘home away from home’, and provide a flexible opportunity for occupants to travel with pets. Dogs in particular can become distressed when left unattended, causing disturbance to neighbours, and the Dog Act 1976 does not provide a workable means to address this matter.

 

While it may be investigated as an opportunity for change, officers do not support the banning of all dogs from holiday homes.

 

The Local Law currently contains measures that could prohibit dogs from being left unattended, however it could be amended to:

 

Opportunity 5.1:

Strengthen and clarify the conditions of registration that do not allow dogs to be left unattended at holiday homes.

 

Opportunity 5.2:

Prohibit dogs from holiday homes.

 

Officers recommend support for Opportunity 5.1 but not Opportunity 5.2.

 

6.    Temporary development approvals.

Usually, a development approval ‘runs with the life of the land’ – it is granted in perpetuity. A temporary development approval may be applied as a condition of approval, where it limits the period for which the approval is granted. This can be applied to a broad range of land uses where there is some uncertainty around future planning objectives – or if there is seen to be a need for future change.

 

The Shire of Augusta-Margaret River have adopted this approach. When renewals are considered, the granting of an approval is based solely on the number and nature of complaints that have been received for a property (rather than a full assessment that considers changes in the planning framework). This limited approach is based on particular development standards in the scheme, has allowed the Shire to develop a stream-lined process, and planning officers have advised that this is mostly carried out by administration officers. Generally renewals are not refused, even where the planning framework has changed in the interim period.

 


 

The opportunities for change include:

 

Opportunity 6.1:

Introduce a development requirement into the Scheme.

 

Opportunity 6.2:

Introduce a ‘performance criteria’ provision into the LPP.

 

Opportunities 6.1 and 6.2 could be applied:

a)         To all new applications, enabling Council to be responsive, over time, to changes in the planning framework; or

b)        To those applications that propose more than a set number of occupants  (for example, 9 or more occupants); or

c)         Selectively, where submissions have been received that express concerns on amenity grounds.

 

Officers do not recommend support for Opportunity 6.1 or 6.2, for the following reasons:

a)         A re-assessment may be complex if the state planning framework has changed, resulting in additional time for assessments and workloads for staff.

b)        The sheer number of new holiday home applications each year (which is considerably higher than Augusta-Margaret River) would result in a substantial cumulative workload over a number of years.

c)         The Shire of Augusta-Margaret River rarely refuse renewals, raising a question about the effectiveness of using temporary development approvals as a tool to “manage the management” of a property (rather than via a Local Law).

d)        There is a degree of uncertainty for investors, particularly if there are changes in the state planning framework (resulting in full reassessment when renewal is required).

 

Nonetheless, Council may decide to support one or both of these opportunities for change.

 

7.    Council Policy to set out how the City intends to implement the Local Law

The final opportunity for change proposed by officers is the introduction of a Council Policy, to provide guidance to staff and stakeholders in setting out how the City intends to implement the Local Law.

 

The introduction of a Council Policy could provide for more transparency and consistency in decision-making, and ensure that the direction taken by the City is in line with community vision, aspirations and expectations.

 

Opportunity 7.1:

Develop a Council Policy to set out how the City intends to implement the Local Law, and to provide guidance to Councillors, officers and stakeholders.

 

Officers recommend support for Opportunity 7.1.

 


 

Process to Complete the Review

Due to the integrated nature of the regulatory framework, officers consider that these opportunities for change may not be as effective if introduced in isolation, and it is recommended that a combination of measures are necessary. It is also recommended that the opportunities supported by Council should be tested through stakeholder and community consultation. Details of advertising and consultation are outlined in the ‘Stakeholder Consultation’ section below.

 

It is proposed that Council consider the outcomes of consultation, prior to the initiation of any formal changes, which would in turn be advertised under the requirements of the Local Government Act 1995, or the Planning and Development (Local Planning Schemes) Regulations 2015.

Statutory Environment

Local Government Act 1995 (LG Act)

Section 3.5 of the LG Act provides Council with the head of power for making local laws, which stipulates:

A local government may make Local Laws under this Act prescribing all matters that are required or permitted to be prescribed by a local law, or are necessary or convenient to be so prescribed, for it to perform any of its functions under this Act.

 

The local laws are all made under the head of power contained in section 3.5 of the LG Act.

 

Holiday Homes Local Law 2012 (Local Law)

The purpose of the Local Law is to require the registration of all holiday homes, the nomination of a manager and acting manager, and to ensure the adherence to conditions relating to the orderly and proper use of the holiday home.

 

Planning and Development Act 2005 (PD Act) and associated Regulations

The PD Act outlines the relevant considerations when preparing and amending local planning schemes.

 

The Planning and Development (Local Planning Schemes) Regulations 2015 identify three different types of Scheme amendments (regulation 34), and set out the procedure for amending a local planning policy (Schedule 2, Part 2, clause 5).

 

Local Planning Scheme No. 21 (the Scheme)

Table 1 - Zoning Table indicates, subject to the provisions of the Scheme, the uses permitted in the Scheme area in the various zones. The permissibility of uses is determined by cross-reference between the list of uses classes on the left hand size of the Zoning Table and the list of zones at the top of the Zoning Table.  The symbols used in the cross reference of the Zoning Table have the following meanings:

‘D’          means the use is not permitted unless the local government has exercised its discretion by granting development approval;

‘A’          means the use is not permitted unless the local government has exercised its discretion after advertising in accordance with the Regulations;

‘X’           means the use is not permitted by the Scheme.

 


 

Table 1 – Zoning Table currently applies to holiday homes in the following manner:

 

Zone / Use Class

Residential

Regional Centre

Centre

Local Centre

Service Commercial

Tourism

Light Industry

General Industry

Rural

Viticulture / Tourism

Rural Residential

Rural Landscape

Conservation

Bushland Protection

Holiday Home (Multiple/Grouped Dwelling)

A

A

A

A

X

X

X

X

X

X

X

X

X

X

Holiday Home (Single House)

D*

D*

D*

D*

X

X

X

X

D*

D*

D*

D*

D*

D*

* provides reference to Clause 4.18.5 of the Scheme, which includes the following provisions:

 

Notwithstanding the requirements of Table 1, a ‘Holiday Home (Single House)’ which proposes to accommodate 9 or more people will be considered under the ‘A’ symbol and will require public advertising pursuant to Clause 64 of the Deemed Provisions.

 

In regard to the non-permissibility of holiday homes in the Tourism zone, the reason for this is because the holiday home land use can be applied to a residential dwelling, however a residential dwelling is not a permitted use in the Tourism zone.

 

Schedule 1 provides the following land use terms:

“Holiday Home (Multiple/Grouped Dwelling)” means a grouped dwelling or multiple dwelling, which may also be used for short stay accommodation for hire or reward for no more than six people (but does not include a bed and breakfast, chalet, guesthouse, rural tourist accommodation or tourist accommodation.)

“Holiday Home (Single House)” means a single house (excluding ancillary accommodation) which may also be used for short stay accommodation for hire or reward for no more than 12 people (but does not include a bed and breakfast, chalet, guesthouse, rural tourist accommodation or tourist accommodation.)

Relevant Plans and Policies

Leeuwin Naturaliste Sub-regional Strategy (LNSRS)

The LNSRS is an overarching strategic land use planning document outlining the WAPC’s approach to future planning and development in the City of Busselton and the Shire of Augusta Margaret River over the next 20 years.

 

Several key planning issues are identified as being evident in the sub-region, and under the sub-heading ‘Settlement’, the following key planning issue is stated:

The influence of ‘holiday homes’ on local community cohesion and development.

 

Local Planning Policy 4.1 Holiday Homes (LPP 4.1)

LPP 4.1 provides guidance for the assessment of a development application, with due regard given to location, utility servicing, car parking, dwelling design, and bushfire management.

Financial Implications

There are no significant financial implications associated with the Officer Recommendation.

Stakeholder Consultation

It is envisaged that the main stakeholder groups with an interest in this matter will be holiday home owners, managers and management agencies, guests, neighbours, and the community in general.

 

If the Council resolves to initiate a review of the holiday home regulatory framework, then the Directions Paper would be prepared and made available for public viewing. To facilitate consultation, the following actions will be undertaken:

·        Targeted emails to holiday home owners, managers, and management agencies.

·        Notices in the local newspaper, and through the Bay to Bay newsletter, and the City’s social media pages.

·        On public notice boards in the administration building and libraries.

·        A notice on the City’s website, including a portal to be created using the City’s YourSay platform for the online lodgement of submissions.

·        In-person information sessions for the general community in Busselton and Dunsborough, and separately with industry stakeholder groups.

·        Online information sessions for stakeholders who are not able to attend other sessions in person.

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.         Resolve to seek further information before making a decision.

2.         Resolve to support the opportunities for change subject to identified modification(s).

3.         Resolve to decline the review of the key instruments which form the City’s interrelated regulatory framework for holiday homes.

CONCLUSION

As a result of this background research, a number of opportunities for change have been drafted, and it is proposed that the Directions Paper and particularly the opportunities for change be advertised to stakeholders and the community, in order to inform Council direction for the future management of holiday homes.

 

This will, in turn, form the basis of amendments to each of the key instruments that make up the holiday homes regulatory framework.


 

TIMELINE FOR IMPLEMENTATION OF OFFICER RECOMMENDATION

The implementation of the officer recommendation will occur over the following time period, following the date of the Council resolution:

a)         Mid-July – finalisation of Directions Paper;

b)        Mid-August to late September – stakeholder consultation;

c)         End of 2021 – report back to Council.


Policy and Legislation Committee

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6.1

Attachment a

Local Planning Policy 4.1

 






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6.1

Attachment b

Local Law

 


 


 









Policy and Legislation Committee

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26 May 2021

6.1

Attachment c

Government Response to 2019 Parliamentary Inquiry

 














Policy and Legislation Committee

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6.1

Attachment d

Holiday Home Clusters

 


Policy and Legislation Committee

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6.1

Attachment e

Option 1 - Exclusion Area

 


Policy and Legislation Committee

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6.1

Attachment f

Option 2 - Exclusion Area

 


Policy and Legislation Committee                                  76                                                                      26 May 2021

11.34am:              At this time, Ms Reddell and Ms Wilkinson left the meeting.

 

11.37am:              At this time, Cr Henley left the meeting.

 

11.39am:              At this time, Cr Henley re-entered the meeting.

 

6.2             REVIEW OF VARIOUS LOCAL LAWS

STRATEGIC GOAL

6. LEADERSHIP Visionary, collaborative, accountable

STRATEGIC OBJECTIVE

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

SUBJECT INDEX

Local Laws

BUSINESS UNIT

Corporate Services

REPORTING OFFICER

Legal Officer - Briony McGinty

AUTHORISING OFFICER

Director Finance and Corporate Services - Tony Nottle

NATURE OF DECISION

Legislative: adoption of “legislative documents” such as local laws, local planning schemes and local planning policies

VOTING REQUIREMENT

Absolute Majority

ATTACHMENTS

Attachment a   Local Government Property Local Law 2010

Attachment b    Busselton Regional Airport Local Law 2012

Attachment c    Holiday Laws Local Law 2012

Attachment d   Keeping and Control of Cats Local Law 2014  

 

Committee RECOMMENDATION and Officer Recommendation

PL2105/399            Moved Councillor K Hick, seconded Councillor G Henley

That the Council:

1.         Resolves that the following local laws should continue in operation without repeal or amendment:

a.         Keeping and Control of Cats; and

b.         Busselton Regional Airport.

 

2.         Directs the CEO to write to the Minister of Local Government and the Department of Local Government, Sport and Cultural Industries to request a review of the Cat Act 2011, so as to enable local governments to legislate for additional matters; and

 

3.         Resolves that amendments are required to the following local laws and that a separate local law amendment should be initiated for each in accordance with section 3.12 of the Local Government Act 1995:

a.         Local Government Property; and

b.         Holiday Homes.

CARRIED 5/0

BY ABSOLUTE MAJORITY

 


 

EXECUTIVE SUMMARY

The Local Government Act 1995 (LG Act) requires that local laws are reviewed every eight years. The following local laws are either currently or shortly due for review:

·        Local Government Property Local Law 2010 (as amended) (Attachment A);

·        Busselton Regional Airport Local Law 2012 (as amended) (Airport Local Law) (Attachment B);

·        Holiday Homes Local Law 2012 (as amended) (Attachment C); and

·        Keeping and Control of Cats Local Law 2014 (Cat Local Law) (Attachment D);

(collectively the Local Laws).

 

The purpose of this report is for Council to consider whether each of the Local Laws should be amended, repealed or continue in operation.

 

Officers recommend that amendments are made to the Local Government Property Local Law and Holiday Homes Local Law. There are no amendments that are recommended for the Cat Local Law and the Airport Local Law. However, further action in relation to the Cat Local Law is recommended to enable the City to legislate in the future for matters relating to wandering cats.

 

Where amendments have been identified as necessary, a further report will be presented to Council which recommends the proposed amendments specific to each local law. There will be further opportunity for community consultation and additional consideration at that point.

 

BACKGROUND

Section 3.16 of the LG Act requires that local laws are reviewed every eight years. The Local Laws were last reviewed as follows:

·        Local Government Property Local Law – 22 March 2011

·        Airport Local Law – 16 November 2012

·        Holiday Homes Local Law – 16 November 2012

·        Cat Local Law – 10 February 2014

 

The subject matter and background of each local law is dealt with under Officer Comment below.

 

The Local Law review was commenced on 5 February 2021 which involved public advertising in accordance with section 3.16(2) of the LG Act (as outlined under Stakeholder Consultation).  Submissions were invited and are summarised under Officer Comment.

OFFICER COMMENT

Cat Local Law

The City was one of the first local governments in Western Australia to introduce a local law in relation to cats. The City identified that the control of cats was a significant issue for the district and in 2000 implemented a local law regulating cats. The local law had clauses which effectively prohibited wandering and stray cats and allowed City rangers to implement those prohibitions through infringement and impoundment powers (“wandering cat” clauses). Those clauses mirrored similar provisions contained in the Dog Act 1976 under which dogs can only be in public places if on a leash.

 

In 2014, following the commencement of the operative provisions of the Cat Act 2011 (Cat Act), the City adopted a new local law which removed matters dealt with under the Cat Act (such as registration and microchipping) and retained those matters not covered. It was policy neutral.  The wandering cat clauses were retained.

 

Following the introduction of the Cat Local Law, the local law was scrutinised by the Joint Standing Committee on Delegated Legislation (JSC) and was not subject to any disallowance motion by Parliament. However, when another local government adopted a local law dealing with cats, using the City of Busselton’s as a template, the JSC took issue with the clauses regarding wandering cats. As the period in which a motion of disallowance could be lodged against the Cat Local Law had passed, the only option of the JSC was to write to the Minister for Local Government to request the Governor to repeal those clauses relating to wandering cats.

 

The view of the JSC (and ultimately the Minister) was that, as the Cat Act did not include wandering cats within the list of matters for which a local law could be made, those clauses were not within power. The City wrote lengthy submissions to the then Minister for Local Government (and Minister for the Environment) regarding the appropriateness of the wandering cat clauses, having particular regard to the locality and the vulnerable status of the western ringtail possum. The City’s position was that the LG Act (and the Cat Act) provided a sufficient head of power in which to enact the wandering cat clauses. Ultimately, the Governor chose to repeal those provisions of the Cat Local Law.

 

Since 2015, this has left the City with limited power to regulate wandering cats, and no ability to amend the local law in order to do so. All of the submissions regarding the Cat Local Law raised concerns with wandering cats, with particular emphasis on protection of native wildlife. All submissions wanted restrictions relating to wandering cats. Some submissions raised unique solutions such as requiring all cat owners to build cat enclosures, or encouraging the Department of Biodiversity, Conservation and Attractions to conduct feral cat control campaigns. However, none of these options (including the previous option of prohibiting wandering cats) are capable of introduction into a local law.

 

It has been six years since the unilateral repeal of the wandering cat provisions. Indications are that the community want these provisions to be re-introduced. Given there is no head of power under current legislation to introduce these measures, it is recommended that the City once again communicate its concerns to the relevant Minister. This could either take the form of advocating that wandering cat clauses are within power or, alternatively, advocating for legislative change at a State level which would either create consistent State-wide prohibitions on wandering cats, or at least allow districts to legislative themselves in such a fashion.

 

Local Government Property Local Law

The Local Government Property Local Law was introduced in 2010 and further amended in 2011. The local law replaced the outdated Reserves and Foreshores Local Law which covered a limited subject matter. The impetus for the new local law was to better regulate use of public spaces and largely adopted the WALGA model local law. The local law is consistent with many other local governments across the State.

 

During the public consultation phase, the City did not receive any submissions from the public in relation to the Local Government Property Local Law. However, given the local law covers a significant subject matter of broad and regular application, an extensive internal review has been conducted which has identified various matters which require attention.

 

Those which are recommended for detailed review and amendment are as follows:

 

Flying of Drones (Schedule 2, clause 2.2)

The City has no control over airspace, which, under the current legislation, is reserved for the Civil Aviation Safety Authority. Therefore, the City cannot regulate drone usage in the air. However, there is the capacity, if the City chooses, to regulate launching and/or landing of drones from local government property. There is presently some ambiguity around this capacity, therefore, it is recommended to strengthen and clarify those provisions to enable regulation.

Exercise Classes on Reserves (clause 3.13 (1)(d))

The review noted that permits for “boot camps etc.” are currently only required on beaches or at City owned pools or recreation centres. The understanding of officers is that various other City facilities/venues are currently being used for these activities. It is therefore recommended that the City consider introducing provisions to extend the City’s powers to regulate these types of activities on, for example, City managed ovals in order to respond to conflicts of use where appropriate. 

 

Swimming Pool – increase to minimum age requirements (clause 5.1)

Currently, the local law restricts entry to children under 10 years old unless accompanied by a responsible person over the age of 12. It is recommended that the City consider amending the age requirements so that children under the age of 12 will not be permitted entry unless accompanied by a person over the age of 18. This is above the Minimum Entry Age requirements under the Code of Practice for swimming pools (being that a child under 10 must be accompanied by a person 16 years or older) but is in line with industry benchmarking and more recent understandings of best practice.

 

Penalties (Schedule 1)

Penalties for breaches of this local law are currently at $200 (with the LG Act allowing for maximum infringements of up to $500). As part of any review, the City would consider updating penalties, given the current penalties were set 10 years ago.

 

Airport Local Law

The Airport Local Law was introduced in 2012 in particular response to amenity issues associated with unregulated flight training. The local law has been in operation since 2012 with little public comment. During the public consultation phase, only one submission from the public was received. This submission related to taxis and other forms of passenger transport vehicles. Under the local law, a person is exempt from obtaining a permit to operate a taxi at the airport. The submission advocated for also exempting other forms of passenger transport vehicles from the requirement to obtain a permit. 

 

The current requirement to obtain a permit is to ensure that only accredited public operators operate from the Airport. It is understood that this is similar to arrangements at other airports. Therefore, officers do not recommend any changes to this provision, and for this local law to continue in effect without change.  

 

Holiday Homes Local Law

The City has a two-tiered approach to the regulation of holiday homes. Development approval is required under Local Planning Scheme 21 (LPS 21) (which is not time limited) and registration is required under the Holiday Homes Local Law (which is subject to annual renewal). The City implemented the local law in 2012 as part of a broader response to concerns around a lack of regulation.

 

It is worth setting out, in broad terms, what kinds of matters can or should be regulated under a planning scheme, and what kinds of matters can or should be regulated under a local law. A planning scheme regulates ‘development’, as defined in the planning legislation. Development consists of both ‘works’ (i.e. physical construction or similar) and ‘use’ (i.e. the use to which land is being put). In regulating use, planning schemes can determine whether a particular use is appropriate in a given location, and can set expectations or requirements in terms of how a holiday home (or any form of development) is managed (e.g. numbers of occupants, operating hours).

 


 

A planning scheme, however, is not always able to effectively regulate management practices – such as the expectation that a holiday home will have a manager, where that manager needs to be located, and the timeframes in which that manager needs to respond to complaints. Those kinds of matters are more appropriately addressed via a local law. In the case of some kinds of development, there is often specific legislation which regulates ‘management’ of the development, a key example being the liquor licensing legislation for licensed premises. The general principle, though, is that a local law should not seek to regulate matters that would be better regulated through a planning scheme. That includes assessing whether a holiday home is appropriate on a particular site or area.

 

The more significant aspects of the current local law are as follows:

1.         The local law requires all holiday homes (as defined in LPS 21) to be registered.

2.         Registration can only occur where development approval has been granted.

3.         A manager and acting manager must be nominated.

4.         Conditions of registration can cover matters such as:

a.         Maximum number of occupants and attendants (which term includes guests);

b.        Provision of parking;

c.         Ensuring a responsive manager.

5.         If a manager ceases to be the manager, then the registration is taken to be cancelled.

6.         If an attendant breaches a condition of registration, then the manager must terminate the occupant’s tenancy.

7.         The manager must be contactable at all times and in any event within 24 hours.

 

As development approvals are generally in perpetuity, the local law provides the ability to cancel a registration under the local law in the case of persistent breaches. Similarly, there is also the ability to refuse to renew a registration where considered necessary. However, it is worth noting that the maximum infringement penalty that can be imposed under any local law is $500. Infringements under the current local law are set between $150 and $400. The maximum penalty that can be imposed by a court following a successful prosecution under any local law is $5,000. This makes enforcement options under the Planning and Development Act 2005 more attractive (where maximum penalties are set at $200,000 for an individual and $1,000,000 for a company) compared to enforcement options under the local law.

 

The majority of submissions voiced opposition to holiday homes with particular emphasis on noise, parking, dogs and rubbish. Another area of concern was holiday homes being approved in unsuitable areas of the district. Residents were concerned with a loss of community character and changes to their daily lives such as the fear of allowing their children to play on the street due to increased traffic with no concern for local conditions. Issues with a lack of affordable housing and diminishing rental stock also formed a significant percentage of submissions.

 

There were a handful of submissions which were supportive of the rights of landowners to choose how they used their property, supportive of free-market principles regarding housing stock, and did not want to see any additional forms of regulation placed on property owners who wanted to rent their properties on a short-term commercial basis. They also viewed the lack of long-term rentals as a short-term problem.

 

A significant number of submissions raised issues with regard to holiday homes that cannot be considered solely within a review of the local law in isolation. The City has also commenced a broader policy review with regard to holiday homes. The submissions received through the local law review process have been collated and provided to strategic planning officers conducting the broader policy review. They will be considered as part of a review of the strategic and statutory planning environment.

 

In summary, these submissions related to:

1.         Lack of affordable housing.

2.         Diminishing long-term rental stock.

3.         Need for reform at the State level.

4.         Recommendations to introduce a State-wide registration scheme.

5.         Application of the 10% differential rate to short-term rentals.

6.         Waste management at holiday homes. 

7.         Permissibility of holiday homes linked to particular zones, with particular opposition to new housing estates areas.

8.         Requirement to broadly advertise development applications for holiday homes.

9.         Equal application of fire safety regulation.

 

A number of submissions raised issues which are already addressed in the local law. These were:

1.         The local law should require online booking platform short term rentals to be registered.

Comment: If the holiday home is being let for profit then registration is already required under the local law.

 

2.         The local law should provide for a cap on numbers staying at the holiday home.

Comment: The local law already provides for a cap on numbers (as does the development approval process). The cap can specify numbers of occupants staying at the property overnight as well as capping attendants (which terms includes visitors of occupants). However, to reduce numbers in a holiday homes registration below that provided for in the development approval process would be problematic.

 

It is also worth noting that, while these issues are already addressed by the local law, they may not be applied adequately through the conditions of registration imposed by the City. As part of the strategic planning review, officers will consider revising standard conditions of registration through internal administrative review processes rather than through an amendment to the local law.

 

Issues which were raised and can be considered as part of a more detailed amendment to the local law to be presented to Council are as follows:

1.         Currently the local law provides that managers must respond to complaints within a reasonable time or at least within 24 hours. Given the nature of short term rentals, and the potential for immediate adverse impacts on adjacent neighbours, a shorter period in which a manager must respond was proposed.

Comment: Any time period in which a manager is required to respond should be reasonable. Otherwise the JSC will not permit such an amendment. It is recommended that the City considers an amendment to the local law to provide for a shorter period in which a manager should respond to complaints. It is also suggested that the City considers the introduction of clauses requiring managers to reside within a certain distance to the holiday home.

 

2.         The contact details of the manager should be visible or made available to neighbours.

Comment: This is arguably already possible under the conditions of registration. However, the local law could be amended to strengthen and clarify those provisions. Consider amendment to the local law to include provision of manager’s details clearly as a condition that can be imposed.


 

3.         Ability to prohibit dogs from being left unattended at holiday homes.

Comment: This is arguably already possible under the conditions of registration. However, the local law could be amended to strengthen and clarify those provisions. Consider amendment to the local law to include the ability to prohibit, as part of a condition of registration, the leaving of unattended dogs. 

 

Officers recommend that a detailed review of this local law is undertaken and reported to Council in due course.

Statutory Environment

Local Government Act 1995

Section 3.5 of the LG Act provides Council with the head of power for making local laws, which stipulates:

A local government may make local laws under this Act prescribing all matters that are required or permitted to be prescribed by a local law, or are necessary or convenient to be so prescribed, for it to perform any of its functions under this Act.

               

The Local Laws are all made under the head of power contained in section 3.5 of the LG Act, with the exception of the Cat Local Law, which is also made pursuant to the Cat Act.

 

The procedure for making local laws is set out in section 3.12 of the LG Act and regulation 3 of the Local Government (Functions and General) Regulations 1996.

 

Section 3.16 of the LG Act requires that every eight years a local law is to be reviewed to determine whether or not it considers that it should be repealed or amended.

 

Parliamentary Scrutiny

Section 42 of the Interpretation Act 1984 allows the WA State Parliament to disallow a local law, which is a mechanism to guard against the making of subsidiary legislation that is not authorised or contemplated by the empowering enactment, has an adverse effect on existing rights, or ousts or modifies the rules of fairness.

 

Parliament has appointed the JSC, which is a committee of State politicians from both Houses of the Western Australian Parliament, to undertake an overseeing role on its behalf. This includes the power to scrutinise and recommend the disallowance of local laws to the Parliament. After gazettal, local laws are sent to the JSC who examines the local law and determines whether or not it complies with abovementioned criteria.

Relevant Plans and Policies

The Commercial use of City Land and Facilities Policy links to and guides decision-making under the Local Government Property Local Law. There are no other plans or policies related to the Local Laws.

Financial Implications

There are no financial implications associated with the officer recommendation, with the costs of reviewing and amending the Local Government Property Local Law and the Holiday Homes Local Law provided for in the City’s budget.

Stakeholder Consultation

The local law review was advertised publicly in accordance with section 3.16(2) of the LG Act. This involved consultation on social media, on the City’s website, in the local paper, and on all public notice boards in the administration building and libraries. Submissions were received as outlined above in officer comment.

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 to repeal or amend the Local Laws in any number of ways.

CONCLUSION

The Local Laws have been advertised broadly. Internal reviews have been conducted regarding the operation of the Local Laws. No issues which are capable of being remedied via a local law amendment have been identified with regard to the Airport Local Law and the Cat Local law. However, with regard to the Cat Local Law, it is recommended that the City write to the Minister for Local Government and the Department of Local Government, Sport and Cultural Industries requesting it reconsider the legislative framework with regard to wandering cats.

In relation to the Local Government Property Local Law and the Holiday Homes Local Law, various issues have been identified. Therefore, it is recommended that amended local laws be presented to Council to address the issues which have been identified through the general review process.

TIMELINE FOR IMPLEMENTATION OF OFFICER RECOMMENDATION

In relation to the Cat Local Law, no action is required to the local law itself. The City will write to the Minister for Local Government and the relevant department within one month to seek amendments to legislation to allow the City to regulate wandering cats.

 

In relation to the Airport Local Law, no action is required.

 

In relation to the Holiday Homes Local Law, at the conclusion of the broader strategic planning review, an amended local law will be presented to Council with options for amendments, which will allow for any additional items not already identified to be included in any amendment.

 

In relation to the Property Local Law, an amendment local law will be presented to Council which addresses the issues identified in the review process within four months.


Policy and Legislation Committee

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26 May 2021

6.2

Attachment a

Local Government Property Local Law 2010

 



































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6.2

Attachment b

Busselton Regional Airport Local Law 2012

 


 







Policy and Legislation Committee

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6.2

Attachment c

Holiday Laws Local Law 2012

 


















Policy and Legislation Committee

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26 May 2021

6.2

Attachment d

Keeping and Control of Cats Local Law 2014

 










Policy and Legislation Committee                                  144                                                                    26 May 2021

11.51am:              At this time, Mr Needham and Ms McGinty left the meeting.

 

11.51am:              At this time, Mr Archer entered the meeting and Mr Nottle and Mrs Heys re-entered the meeting.

7.               General Discussion Items

7.1             CARETAKER POLICY

Committee RECOMMENDATION

PL2105/400            Moved Councillor G Henley, seconded Councillor K Hick

That the Committee notes the information and examples of Council caretaker policies and requests officers to provide a report to the Committee with a draft caretaker policy for the Committee’s consideration and recommendation to Council.

CARRIED 5/0

 

The 2021 Local Government Elections are to be held on 16 October 2021. Given the timing of the upcoming elections, Councillors have requested a discussion be held on the City’s position on a caretaker council policy.

 

Officers have researched the caretaker policies of several other local governments, including City of Joondalup, City of Perth and the WALGA template. Copies of these example council policies are attached for information.


Policy and Legislation Committee

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26 May 2021

7.1

Attachment a

City of Joondalup Elections Caretaker Policy

 










Policy and Legislation Committee

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7.1

Attachment b

City of Perth Caretaker Period Policy

 





Policy and Legislation Committee

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7.1

Attachment c

WALGA Caretaker Policy Template

 










Policy and Legislation Committee                                  167                                                                      26 May 2021

8.               Next Meeting Date

Wednesday, 28 July 2021

 

9.               Closure

The meeting closed at 11.59am.

 

 

 

 

THESE MINUTES CONSISTING OF PAGES 1 TO 167 WERE CONFIRMED AS A TRUE AND CORRECT RECORD ON Wednesday, 28 July 2021.

DATE:______________________  PRESIDING MEMBER:_____________________________