Policy and Legislation Committee Agenda

 

 

 

22 September 2021

 

 

 

 

 


ALL INFORMATION AVAILABLE IN VARIOUS FORMATS ON REQUEST

city@busselton.wa.gov.au

 

 


CITY OF BUSSELTON

MEETING NOTICE AND AGENDA – 22 September 2021

 

 

 

TO:                  THE MAYOR AND COUNCILLORS

 

 

NOTICE is given that a meeting of the Policy and Legislation Committee will be held in the Committee Room, Administration Building, Southern Drive, Busselton on Wednesday, 22 September 2021, commencing at 10.00am.

 

The attendance of Committee Members is respectfully requested.

 

 

DISCLAIMER

Statements or decisions made at Committee meetings should not be relied on (or acted upon) by an applicant or any other person or entity until subsequent written notification has been given by or received from the City of Busselton. Without derogating from the generality of the above, approval of planning applications and building permits and acceptance of tenders and quotations will only become effective once written notice to that effect has been given to relevant parties. The City of Busselton expressly disclaims any liability for any loss arising from any person or body relying on any statement or decision made during a Committee meeting.

 

 

 

Mike Archer

 

CHIEF EXECUTIVE OFFICER

 

17 September 2021


CITY OF BUSSELTON

Agenda FOR THE Policy and Legislation Committee MEETING TO BE HELD ON 22 September 2021

TABLE OF CONTENTS

 

ITEM NO.                                        SUBJECT                                                                                                                              PAGE NO.

1....... Declaration of Opening, ACKNOWLEDGEMENT OF COUNTRY and Announcement of Visitors. 4

2....... Attendance. 4

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

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

5....... Confirmation and receipt of Minutes. 4

5.1          Minutes of the Policy and Legislation Committee Meeting held 24 August 2021. 4

6....... Reports. 5

6.1          LOCAL GOVERNMENT PROPERTY AMENDMENT LOCAL LAW 2021. 5

6.2          ANNUAL STATUTORY REVIEW OF DELEGATIONS OF AUTHORITY. 49

6.3          SOUTH WEST DESIGN REVIEW PANEL AND ADOPTION OF PROPOSED LOCAL PLANNING POLICY 4.13 - DESIGN REVIEW... 105

7....... General Discussion Items. 116

8....... Next Meeting Date. 116

9....... Closure. 116

 


Policy and Legislation Committee                                  4                                                           22 September 2021

 

1.               Declaration of Opening, ACKNOWLEDGEMENT OF COUNTRY and Announcement of Visitors

 

2.               Attendance 

Apologies

 

3.               Public Question Time

 

4.               Disclosure Of Interests

 

5.               Confirmation and receipt of Minutes

5.1             Minutes of the Policy and Legislation Committee Meeting held 24 August 2021

Recommendation

That the Minutes of the Policy and Legislation Committee Meeting held 24 August 2021 be confirmed as a true and correct record.

 


Policy and Legislation Committee                                  6                                                           22 September 2021

6.               Reports

6.1             LOCAL GOVERNMENT PROPERTY AMENDMENT LOCAL LAW 2021

STRATEGIC THEME

LEADERSHIP - A Council that connects with the community and is accountable in its decision making.

STRATEGIC PRIORITY

4.2 Deliver governance systems that facilitate open, ethical and transparent decision making.

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

Simple Majority

ATTACHMENTS

Attachment a   Local Government Property Amendment Local Law 2021

Attachment b    Consolidated LG Property Local Law incorporating proposed changes marked up  

 

OFFICER RECOMMENDATION

That the Council:

1.         Commences the law-making process for the City of Busselton Local Government Property Amendment Local Law 2021, the purpose and effect of the local law being as follows:

Purpose: To regulate the care, control and management of local government property (except thoroughfares) by amending sections of the Shire of Busselton Local Government Property Local Law 2010.

Effect: To control the use of local government property by updating minimum age requirements for entry to swimming pools, updating penalties, and clarifying other powers.

2.         Authorises the CEO to carry out the law-making procedure under section 3.12(3) of the Local Government Act 1995, by:

(a)       Giving local public notice of the Amendment Local Law; and

(b)      Giving a copy of the Amendment Local Law and public notice to the Minister for Local Government.

 

3.         Notes that the CEO, after the close of the public consultation period, will submit a report to the Council on any submissions received on the proposed local law to enable the Council to consider the submissions made and to determine whether to make the local law in accordance with section 3.12(4) of the Act.

 


 

EXECUTIVE SUMMARY

The Shire of Busselton Local Government Property Local Law 2010 (Property Local Law) was first published in the government gazette in 2010, with little change since. Throughout the first half of 2021 a statutory review of the Property Local Law was conducted pursuant to section 3.16 of the Local Government Act 1995 (the Act). On 9 June 2021, Council resolved that, among other things, amendments were required to the Property Local Law and that a local law amendment should be initiated.

 

In accordance with that resolution, an amendment to the Property Local Law has been prepared (Amendment Local Law) for consideration by the Council. It is recommended that the Council initiates the law-making process and authorises the CEO to give local public notice of the Amendment Local Law.

 

BACKGROUND

The Property Local Law was introduced in 2010 and further amended in 2011. At that time, the Property Local Law replaced the outdated Reserves and Foreshores Local Law which covered a limited subject matter. The impetus for the Property Local Law was to better regulate use of public spaces, with particular emphasis on vegetation protection. The Property Local Law largely adopted the WALGA model and is consistent with similar local laws of many other local governments across the State.

 

Section 3.16 of the Act requires that local laws are reviewed every 8 years to consider whether or not a local law under review should be repealed or amended. As part of this review process, submissions may be made to the local government in relation to the local law under review. During the public consultation phase for the statutory review of the Property Local Law in 2021, the City did not receive any submissions. However, given the local law covers a significant subject matter of broad and regular application, an extensive internal review was conducted by officers which identified various matters requiring attention.

 

Those matters which were recommended for detailed review in the June 2021 report to Council were as follows:

 

Launching and/or Landing 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.

 

Under the current Property Local Law, the City has the ability to regulate launching and/or landing motorised model aeroplanes from local government property. It is open to interpretation as to whether a drone could be classified as a motorised model aeroplane, which could cause some ambiguity around this capacity. Therefore, it is recommended to strengthen and clarify those provisions of the Property Local Law to enable regulation.

 

The Amendment Local Law does not seek to change the current position with regard to how the City regulates drone usage. However, it seeks to clarify that, if the City choses to do so, it could restrict the use of drones on local government property pursuant to a determination process. This change will allow Council to designate particular areas where the launching and landing of drones may, for example, be prohibited, permitted, or permitted subject to various conditions.

 


 

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

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

 

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

Currently, the Property 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 considers 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 age limit is above the Minimum Entry Age requirements under the Code of Practice for swimming pools (issued under the Health Act 1911), 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 the Property Local Law are currently set at (mostly) $200.  The Act allows for maximum infringements of up to $500. Given the current penalties were set over 10 years ago, it recommended that appropriate increases are made. If the City was to raise penalties in line with Perth CPI from when the local law was first introduced (and penalties last amended), this would represent an approximate $50 increase in penalties. A review of other local government’s practices suggests this represents a modest increase.

OFFICER COMMENT

The Property Local Law has operated effectively since its gazettal. The Property Local Law is based on the WALGA model but was modified to accommodate the particular circumstances of the locality. However, during the statutory review conducted during 2020/2021, various opportunities for improvement have been identified. The matters identified during the review are as discussed in the background section of this report and have been incorporated into the attached Amendment Local Law.

Statutory Environment

Local Government Act 1995

Section 3.16 of the Act requires that within a period of 8 years from the day when a local law commenced or a report of a review of the local law was accepted, a local government is to carry out a review of the local law to determine whether or not it considers that it should be repealed or amended. The City developed and maintains a local law review program to ensure compliance with the requirements of Section 3.16.

 

Section 3.5 of the 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 procedure for making local laws is set out in sections 3.12 to 3.17 of the Act and regulation 3 of the Local Government (Functions and General) Regulations 1996 (WA). The person presiding at a Council meeting is to give notice of the purpose and effect of a proposed local law by ensuring that:

·        the purpose and effect of the proposed local law is included in the agenda for that meeting; and

·        the minutes of that Council meeting include the purpose and effect of the proposed local law.

 

The purpose and effect of the Amendment Local Law is as follows:

 

Purpose: To regulate the care, control and management of local government property (except thoroughfares) by amending sections of the Shire of Busselton Local Government Property Local Law 2010.

 

Effect: To control the use of local government property by updating minimum age requirements for entry to swimming pools, updating penalties, and clarifying other powers.

 

Local public notice is to be given by advertising the Amendment Local Law in accordance with the requirements of sections 3.12(3) of the Act. The submission period must run for a minimum period of six weeks after which Council, having considered any submissions received, may resolve to make the local law as proposed or make a local law that is not significantly different from what was proposed.

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 Joint Standing Committee on Delegated Legislation (JSC) which is a committee of State politicians from both houses of the Western Australian Parliament, to undertake an overseeing role on its behalf, which includes the power to scrutinise and recommend the disallowance of local laws to the Parliament. After gazettal, a copy of the Amendment Local Law will be sent to the JSC who will examine the local law and determine whether or not it complies with abovementioned criteria.

Relevant Plans and Policies

The following policies are used to assist in the application of the Property Local Law:

·        Commercial Use of City Land and Facilities;

·        Community Hire of City Property; and

·        Private Work on City Land, including private coastal protection work on City Land.

Financial Implications

Costs associated with the advertising and gazettal of the Amendment Local Law will come from the legal budget. These costs are unlikely to exceed $2,000 and there are sufficient funds in the legal budget for this purpose.

 

In terms of the increase in modified penalties, the City is unlikely to see any significant increase in income, given the City’s approach to its regulatory functions. Proposed increases are minor and based on a review of the City’s existing amounts and a comparison of other local governments.

 

Making and implementing the Amendment Local Law should not have any other financial implications for the City.

Stakeholder Consultation

Should Council resolve to commence the process of making the Amendment Local Law, public submissions will be invited as part of the statutory consultation process prescribed under section 3.12(3) of the Act.

 

The submission period must run for a minimum period of 6 weeks after which the Council, having considered any submissions received, may resolve to adopt the proposed local law or a law which is not significantly different.

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 vary the provisions of the Property Local Law in any number of ways. However, for the reasons outlined in this report, the Amendment Local Law is the form of local law recommended at this stage.

 

There will be further opportunity for considering and making changes to the Amendment Local Law following the public consultation process outlined above, provided the changes are not significantly different from what is currently proposed. If any changes are of a significant nature the Amendment Local Law would need to be re-advertised.

CONCLUSION

It is recommended that the Council initiate the law-making process and authorise the CEO to commence advertising the Amendment Local Law.

TIMELINE FOR IMPLEMENTATION OF OFFICER RECOMMENDATION

Within two weeks of the Council decision to commence the law-making process, the Amendment Local Law will be advertised for public comment. The statutory consultation period is a minimum of six weeks and following the close of the advertising period a report will be submitted to the Council for further consideration which, depending on the number and nature of submissions received, could be within three months.

 


Policy and Legislation Committee

15

22 September 2021

6.1

Attachment a

Local Government Property Amendment Local Law 2021

 







Policy and Legislation Committee

48

22 September 2021

6.1

Attachment b

Consolidated LG Property Local Law incorporating proposed changes marked up

 


































Policy and Legislation Committee                                  59                                                         22 September 2021

6.2             ANNUAL STATUTORY REVIEW OF DELEGATIONS OF AUTHORITY

STRATEGIC THEME

LEADERSHIP - A Council that connects with the community and is accountable in its decision making.

STRATEGIC PRIORITY

4.2 Deliver governance systems that facilitate open, ethical and transparent decision making.

SUBJECT INDEX

Delegations of Authority

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

Absolute Majority

ATTACHMENTS

Attachment a   DA1 - 01 Issuing notices

Attachment b    DA1 - 02 Entry in an emergency

Attachment c    DA1 - 03 Abandoned vehicle wreck

Attachment d   DA1 - 04 Confiscated or uncollected goods

Attachment e    DA1 - 05 Closure of thoroughfares

Attachment f    DA1 - 07 Inviting, rejecting and accepting tenders (amended)

Attachment g   DA1 - 08 Expression of interest for goods and services

Attachment h   DA1 - 10 Panels of pre-qualified suppliers (amended)

Attachment i     DA1 - 11 Amendments to the consolidated parking scheme

Attachment j     DA1 - 12 Disposing of property (leases at the BMRA)

Attachment k    DA1 - 13 Dispose of sick or injured animal

Attachment l    DA1 - 14 Power to defer, grant discounts, waive or write-off debts

Attachment m  DA1 - 15 Rates and service charges

Attachment n   DA1 - 16 Investment of surplus funds

Attachment o   DA1 - 19 Urgent legal representation

Attachment p    DA1 - 20 Administer local laws (amended)

Attachment q   DA1 - 21 Acquisition of Property

Attachment r    DA1 - 22A Disposition of property: other than by lease

Attachment s    DA1 - 22B Disposition of property: leasing and licensing of land and buildings

Attachment t    DA1 - 23 Payments from municipal fund or trust fund

Attachment u   DA1 - 24 Affixing of the common seal

Attachment v   DA2 - 01 The powers and duties of the local government pursuant to the Building Act 2011

Attachment w  DA3 - 01 The powers and duties of the local government pursuant to the Bush Fires Act 1954

Attachment x    DA3 - 02 Appointment of Bush Fire Control officers

Attachment y    DA3 - 03 To institute a prosecution or to issue an infringement

Attachment z    DA3 - 04 Variation of prohibited and restricted burning times

Attachment aa DA4 - 01 The powers and duties of the local government pursuant to the Cat Act 2011

Attachment ab DA5 - 01 The powers and duties of the local government pursuant to the Dog Act 1976

Attachment ac DA6 - 01 The powers and duties of a local government pursuant to the  Graffiti Vandalism Act 2016

Attachment ad DA7 - 01 Development control (amended)

Attachment ae DA7 - 02 Unauthorised development

Attachment af DA8 - 01 Certificate of approval pursuant to the Strata Titles Act 1985

Attachment ag DA9 - 01 Criminal Procedure Act 2004 - Authorised and Approved Persons (delete)

Attachment ah DA10 - 01 Designated Authorised Officers (amended)

Attachment ai  DA10 - 02 Appoint authorised officer or approved officer (Asbestos Regulations) (amended)

Attachment aj  DA11 - 01 Meelup Regional Park Management Committee

Attachment ak DA11 - 02 Audit and Risk Committee

Attachment al DA12 - 01 Prohibition orders (proposed)

Attachment am DA12 - 02 Food Business Registration (proposed)

Attachment an DA12 - 03 Appoint authorised officers and designated officers (proposed)  

 

OFFICER RECOMMENDATION

That the Council adopts the City of Busselton Delegations of Authority as per Attachments A through to AN and as outlined in the table below:

 

DELEGATION

CHANGES

DA1 – 01
Issuing Notices

No changes

DA1 – 02
Entry in an Emergency

No changes

DA1 – 03
Abandoned vehicle wreck

No changes

DA1 – 04
Confiscated or Uncollected Goods

No changes

DA1 – 05
Closure of Thoroughfares

No changes

DA1 – 07
Inviting, Rejecting and Accepting Tenders

Change to Conditions:

Increase contract value from $500,000 to $750,000 to reflect rising costs and in recognition of the increase to the tender threshold to $250,000 per annum.

DA1 – 08
Expression of Interest for Goods and Services

No changes

DA1 – 10
Panels of Pre-Qualified Suppliers

Change to Conditions:

Increase contract value from $500,000 to $750,000 to reflect rising costs and in recognition of the increase to the tender threshold to $250,000 per annum.

Correction in Condition (b): ‘connect’ to ‘connection’.

DA1 – 11
Amendments to the Consolidated Parking Scheme

No changes

DA1 – 12
Disposing of Property (Leases at the Busselton Margaret River Airport)

No changes

DA1 – 13
Dispose of sick or injured animals

No changes

DA1 – 14
Power to Defer, Grant Discounts, Waive or Write-Off Debts

No changes

DA1 – 15
Rates and Service Charges

No changes

DA1 – 16
Investment of Surplus Funds

No changes

DA1 – 19
Urgent Legal Representation

No changes

DA1 – 20
Administer Local Laws

Change to Conditions:

Addition of condition to provide clarity in the function of each local law.

DA1 – 21
Acquisition of Property

No changes

DA1 – 22A
Disposition of Property: Other than by Lease

No changes

DA1 – 22B
Disposition of Property: Leasing and Licensing of Land and Buildings

No changes

DA1 – 23
Payments from Municipal Fund or Trust Fund

No changes

DA1 – 24
Affixing of the Common Seal

No changes

DA2 – 01
The Powers and Duties of the Local Government pursuant to the Building Act 2001

No changes

DA3 – 01
The Powers and Duties of the Local Government pursuant to the Bush Fires Act 1954

No changes

DA3 – 02
Appointment of Bush Fire Control Officers

No changes

DA3 – 03
To Institute a Prosecution, or to Issue an Infringement

No changes

DA3 – 04
Variation of Prohibited and Restricted Burning Times

No changes

DA4 – 01
The Powers and Duties of the Local Government pursuant to the Cat Act 2011

No changes

DA5 – 01
The Powers and Duties of the Local Government pursuant to the Dog Act 1976

No changes

DA6 – 01
The Powers and Duties of a Local Government pursuant to the Graffiti Vandalism Act 2016

No changes

DA7 – 01
Development Control

Changes to Conditions:

Various minor wording amendments to reflect contemporary terminology from the Regulations, delete reference to Developer Contribution Plans (now dealt with under the Scheme), and delete reference to Local Development Plans (WAPC has no power to approve or amend).

DA7 – 02
Unauthorised Development

No changes

DA8 – 01
Certificate of Approval pursuant to the Strata Titles Act 1985

No changes

DA8 – 01
Certificate of Approval pursuant to the Strata Titles Act 1985

No changes

DA9 – 01
Criminal Procedure Act 2004 – Authorised Persons

Remove – see new DA 10 - 02

DA 10 – 01
Public Health Act 2016 – Authorised Persons of

Change to Title:

To more clearly reflect the nature of the power being delegated.

Addition of Conditions:

To outline the requirements relating to authorised persons

DA 10 – 02

Appoint Authorised Officer or Approved Officer (Asbestos Regulations)

Amended:

Previously DA 9 – 01, the delegation has been amended to reflect the correct head of power from which the delegation flows from, being the Health (Asbestos) Regulations 1992.

DA 11 – 01

Meelup Regional Park Management Committee

No changes

DA 11 – 02

Audit and Risk Committee

Amended:

Updated to include Risk to reflect the expansion of the Committee to Audit and Risk, as per Council resolution C2109/201.

NEW DELEGATIONS

 

DA 12 – 01

Prohibition Orders

New instrument of delegation to formally delegate to the CEO the functions of a local government under section 118(2) of the Food Act 2008 – specifically in relation to Prohibition Orders.

DA 12 – 02

Food Business Registration

New instrument of delegation to formally delegate to the CEO the functions of a local government under section 118(2) of the Food Act 2008 – specifically in relation to the registration of food businesses.

DA 12 – 03

Appoint Authorised Officers and Designated Officers

New instrument of delegation to formally delegate to the CEO the functions of a local government under section 118(2) of the Food Act 2008 – specifically in relation to the appointment of authorised officers and designated officers.

EXECUTIVE SUMMARY

The Local Government Act 1995 (the Act) requires all delegations of authority to the CEO under the Act to be reviewed by the delegator at least once every financial year. Additionally, delegations made under the Cat Act 2011 and the Dog Act 1976 are required to be reviewed once every financial year. This review is to fulfil those requirements.

 

This report propose new delegations under the Food Act 2008, in regards to prohibition orders, the registration of food businesses and the appointment of authorised/designated officers, which are not covered under section 9.10 of the Act.

 

Delegations made under the Building Act 2011 and the Bushfire Act 1954 do not require an annual review, however officers have include these delegations in this year’s review.

 

BACKGROUND

Delegations of authority are an integral part of the City’s governance functions. Delegations of authority are an effective and efficient means of carrying out the functions or discharging the duties of the local government, by allowing decisions of Council to be made (with or without conditions) by the Chief Executive Officer, who in turn can delegate to other staff where appropriate.

 

Section 5.46(2) of the Act requires all delegations by Council to the CEO to be reviewed at least once each financial year. A review has been completed and this report details the outcomes of that review, and seeks Council’s endorsement of the continuing and amended delegations of authority.

OFFICER COMMENT

The annual statutory review of delegated authorities over the last two years have included significant changes to the format of the delegations and delegations register. As a result of the review in 2020, the City settled on the position that delegations should clearly identify the powers and duties that are being delegated, by reference to both relevant sections and subsections.  

 

This format provides transparency with respect to the powers that are being delegated within a section, where there is more than one, and assists with officer understanding, noting that the City’s register of sub-delegations flow from these head delegations.  This aligns with advice from WALGA that each provision that can be delegated should be delegated separately, to ensure clarity in Council’s decision-making process.

 

This format has worked well in the last 12 months, achieving clarity in the decision making chain and providing officers with confidence they are working within the scope of their powers. To this end, we are not seeking as a result of this year’s review to make any wholesale changes to the format of the delegations or register.

Proposed Changes

The following changes have been identified as part of the review and are recommended for Council’s adoption:

 

Delegation DA 1 – 07 Inviting, Rejecting and Accepting Tenders and DA 1 – 10 Panel of Pre-Qualified Suppliers have both been amended with proposed changes to Condition (c) and (b) respectively. The increase in the threshold to accept tenders and enter into contracts from a value not exceeding $500,000 to $750,000 is reflective of rising costs and in recognition of the increase to the tender threshold to $250,000 per annum. This is particularly important in recognition of the City’s multiyear contracts.

 


 

Delegation DA 7 – 01 Development Control has been amended with proposed changes to Condition 3:

1)         Update the reference to Structure Plans and Activity Centre Plans to reflect contemporary terminology in the Planning and Development (Local Planning Schemes) Regulations 2015 (the Regulations) which now refer to Structure Plans as ‘Standard Structure Plans’ and Activity Centre Plans as ‘Precinct Structure Plans’;

 

2)         Delete reference to Developer Contribution Plans which are now dealt with in the Scheme and therefore require Council approval for initiation and adoption in any case; and

 

3)         Delete reference to Local Development Plans (LDPs) which, while generally requiring WAPC approval for their preparation (eg: as a condition of subdivision, as identified in an approved structure plan, where considered orderly and proper planning by the WAPC) there is actually no power for the WAPC to approve or amend an LDP in the Regulations. It is proposed in association with this change to update the sub-delegations in respect of LDPs to restrict their approval to the Director Planning and Development Services and the Manager Development Services only.

 

Previous delegation DA9 – 01 Criminal Procedure Act 2004, Authorised and Approved Persons has been retitled to DA10 – 02 Appoint Authorised Officer or Approved Officer (Asbestos Regulations) and amended to reflect the correct head of power from which the authority to appoint authorised persons flow from.

Proposed New Delegations

Officers are proposing the adoption of three new delegations of authority for specific powers and duties, pursuant to the functions of an enforcement agency (Local Government) under the Food Act 2008. These are:

 

a.         DA12 – 01 Prohibitions Orders

b.         DA12 – 02 Food Business Registration

c.         DA12 – 03 Appoint Authorised Officers and Designated Officers

 

The proposed delegations ensure efficiencies in the registration of food businesses and the appointment of authorised officers by the CEO in a timely manner to undertake enforcement functions under the Food Act 2008. The power to appoint authorised officers is prescribed by s1.22 of the Food Act 2008, as opposed to section 9.10 of the Act, which provides for the power to appoint authorised officers under different acts.

 

The proposed amendments to the delegations are summarised in the table below, and have been made to reflect efficiencies identified through the review process and/or due to recently legislative changes or updates.

 

DELEGATION

CHANGES

DA1 – 01
Issuing Notices

No changes

DA1 – 02
Entry in an Emergency

No changes

DA1 – 03
Abandoned vehicle wreck

No changes

DA1 – 04
Confiscated or Uncollected Goods

No changes

DA1 – 05
Closure of Thoroughfares

No changes

DA1 – 07
Inviting, Rejecting and Accepting Tenders

Change to Conditions:

Increase contract value from $500,000 to $750,000 to reflect rising costs and in recognition of the increase to the tender threshold to $250,000 per annum.

DA1 – 08
Expression of Interest for Goods and Services

No changes

DA1 – 10
Panels of Pre-Qualified Suppliers

Change to Conditions:

Increase contract value from $500,000 to $750,000 to reflect rising costs and in recognition of the increase to the tender threshold to $250,000 per annum.

Correction in Condition (b): ‘connect’ to ‘connection’.

DA1 – 11
Amendments to the Consolidated Parking Scheme

No changes

DA1 – 12
Disposing of Property (Leases at the Busselton Margaret River Airport)

No changes

DA1 – 13
Dispose of sick or injured animals

No changes

DA1 – 14
Power to Defer, Grant Discounts, Waive or Write-Off Debts

No changes

DA1 – 15
Rates and Service Charges

No changes

DA1 – 16
Investment of Surplus Funds

No changes

DA1 – 19
Urgent Legal Representation

No changes

DA1 – 20
Administer Local Laws

Change to Conditions:

Addition of condition to provide clarity in the function of each local law.

DA1 – 21
Acquisition of Property

No changes

DA1 – 22A
Disposition of Property: Other than by Lease

No changes

DA1 – 22B
Disposition of Property: Leasing and Licensing of Land and Buildings

No changes

DA1 – 23
Payments from Municipal Fund or Trust Fund

No changes

DA1 – 24
Affixing of the Common Seal

No changes

DA2 – 01
The Powers and Duties of the Local Government pursuant to the Building Act 2001

No changes

DA3 – 01
The Powers and Duties of the Local Government pursuant to the Bush Fires Act 1954

No changes

DA3 – 02
Appointment of Bush Fire Control Officers

No changes

DA3 – 03
To Institute a Prosecution, or to Issue an Infringement

No changes

DA3 – 04
Variation of Prohibited and Restricted Burning Times

No changes

DA4 – 01
The Powers and Duties of the Local Government pursuant to the Cat Act 2011

No changes

DA5 – 01
The Powers and Duties of the Local Government pursuant to the Dog Act 1976

No changes

DA6 – 01
The Powers and Duties of a Local Government pursuant to the Graffiti Vandalism Act 2016

No changes

DA7 – 01
Development Control

Changes to Conditions:

Various minor wording amendments to reflect contemporary terminology from the Regulations, delete reference to Developer Contribution Plans (now dealt with under the Scheme), and delete reference to Local Development Plans (WAPC has no power to approve or amend).

DA7 – 02
Unauthorised Development

No changes

DA8 – 01
Certificate of Approval pursuant to the Strata Titles Act 1985

No changes

DA8 – 01
Certificate of Approval pursuant to the Strata Titles Act 1985

No changes

DA9 – 01
Criminal Procedure Act 2004 – Authorised Persons

Remove – see new DA 10 - 02

DA 10 – 01
Public Health Act 2016 – Authorised Persons of

Change to Title:

To more clearly reflect the nature of the power being delegated.

Addition of Conditions:

To outline the requirements relating to authorised persons.

DA 10 – 02

Appoint Authorised Officer or Approved Officer (Asbestos Regulations)

Amended:
Previously DA 9 – 01, the delegation has been amended to reflect the correct head of power from which the delegation flows from, being the Health (Asbestos) Regulations 1992.

DA 11 – 01

Meelup Regional Park Management Committee

No changes

DA 11 – 02

Audit and Risk Committee

Amended:

Updated to include Risk to reflect the expansion of the Committee to Audit and Risk, as per Council resolution C2109/201.

NEW DELEGATIONS

 

DA 12 – 01

Prohibition Orders

New instrument of delegation to formally delegate to the CEO the functions of a local government under section 118(2) of the Food Act 2008 – specifically in relation to Prohibition Orders.

DA 12 – 02

Food Business Registration

New instrument of delegation to formally delegate to the CEO the functions of a local government under section 118(2) of the Food Act 2008 – specifically in relation to the registration of food businesses.

DA 12 – 03

Appoint Authorised Officers and Designated Officers

New instrument of delegation to formally delegate to the CEO the functions of a local government under section 118(2) of the Food Act 2008 – specifically in relation to the appointment of authorised officers and designated officers.

Statutory Environment

Section 5.42 of the Act provides the Council with the ability to delegate powers and duties to its CEO. Some powers and duties cannot be delegated in accordance with Section 5.43 of the Act, such as matters that require an Absolute Majority decision of Council. Council has the right to impose conditions on any delegation it grants.

 

Section 5.16 of the Act provides the ability for powers and duties to be delegated to Committees.

 

Section 44 of the Cat Act 2011 provides the power for the CEO to delegate the exercise of its functions and discharge of its duties to the CEO.

 

Section 10AA of the Dog Act 1976 provides Council with the ability to delegate powers and duties to the CEO.

 

The Local Government Act 1995, the Cat Act 2011 and the Dog Act 1976 require the review of delegations at least once every financial year.

 

The Building Act 2011 does not prescribe a review period for powers or duties delegated under its legislation, however officers have reviewed the relevant delegations as part of this annual review.

 

The Bushfires Act 1954 does not prescribe a review period for powers or duties delegated under its legislation, however officers have reviewed the relevant delegations as part of this annual review.

 

The Food Act 2008 does not prescribe a review period for powers or duties delegated under its legislation.

 

Section 5.46 of the Local Government Act 1995 requires that all delegations are contained within a Register. The Local Government (Administration) Regulations 1996 require that where a decision has been made under delegated authority, records of that decision must be kept in accordance with the Regulations.

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 may choose:

1.         Not to accept any amendments to the delegations; or

2.         To request further amendments are made to the delegations.

CONCLUSION

The statutory review of delegations has been completed and it is recommended that Council adopt the proposed, continuing and amended delegations as per the Recommendation.

TIMELINE FOR IMPLEMENTATION OF OFFICER RECOMMENDATION

The Delegation of Authority Register will be amended immediately following adoption by Council.


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6.2

Attachment a

DA1 - 01 Issuing notices

 


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6.2

Attachment b

DA1 - 02 Entry in an emergency

 


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6.2

Attachment c

DA1 - 03 Abandoned vehicle wreck

 


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6.2

Attachment d

DA1 - 04 Confiscated or uncollected goods

 


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6.2

Attachment e

DA1 - 05 Closure of thoroughfares

 


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6.2

Attachment f

DA1 - 07 Inviting, rejecting and accepting tenders (amended)

 



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6.2

Attachment g

DA1 - 08 Expression of interest for goods and services

 


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6.2

Attachment h

DA1 - 10 Panels of pre-qualified suppliers (amended)

 


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6.2

Attachment i

DA1 - 11 Amendments to the consolidated parking scheme

 


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6.2

Attachment j

DA1 - 12 Disposing of property (leases at the BMRA)

 


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6.2

Attachment k

DA1 - 13 Dispose of sick or injured animal

 


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6.2

Attachment l

DA1 - 14 Power to defer, grant discounts, waive or write-off debts

 



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Attachment m

DA1 - 15 Rates and service charges

 



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6.2

Attachment n

DA1 - 16 Investment of surplus funds

 


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6.2

Attachment o

DA1 - 19 Urgent legal representation

 


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6.2

Attachment p

DA1 - 20 Administer local laws (amended)

 


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6.2

Attachment q

DA1 - 21 Acquisition of Property

 


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6.2

Attachment r

DA1 - 22A Disposition of property: other than by lease

 



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6.2

Attachment s

DA1 - 22B Disposition of property: leasing and licensing of land and buildings

 



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6.2

Attachment t

DA1 - 23 Payments from municipal fund or trust fund

 


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6.2

Attachment u

DA1 - 24 Affixing of the common seal

 


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6.2

Attachment v

DA2 - 01 The powers and duties of the local government pursuant to the Building Act 2011

 


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6.2

Attachment w

DA3 - 01 The powers and duties of the local government pursuant to the Bush Fires Act 1954

 


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6.2

Attachment x

DA3 - 02 Appointment of Bush Fire Control officers

 


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6.2

Attachment y

DA3 - 03 To institute a prosecution or to issue an infringement

 


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6.2

Attachment z

DA3 - 04 Variation of prohibited and restricted burning times

 


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6.2

Attachment aa

DA4 - 01 The powers and duties of the local government pursuant to the Cat Act 2011

 


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6.2

Attachment bb

DA5 - 01 The powers and duties of the local government pursuant to the Dog Act 1976

 


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6.2

Attachment cc

DA6 - 01 The powers and duties of a local government pursuant to the  Graffiti Vandalism Act 2016

 


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6.2

Attachment dd

DA7 - 01 Development control (amended)

 




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6.2

Attachment ee

DA7 - 02 Unauthorised development

 


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6.2

Attachment ff

DA8 - 01 Certificate of approval pursuant to the Strata Titles Act 1985

 


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6.2

Attachment gg

DA9 - 01 Criminal Procedure Act 2004 - Authorised and Approved Persons (delete)

 


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6.2

Attachment hh

DA10 - 01 Designated Authorised Officers (amended)

 


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6.2

Attachment ii

DA10 - 02 Appoint authorised officer or approved officer (Asbestos Regulations) (amended)

 


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6.2

Attachment jj

DA11 - 01 Meelup Regional Park Management Committee

 


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6.2

Attachment kk

DA11 - 02 Audit and Risk Committee

 



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6.2

Attachment ll

DA12 - 01 Prohibition orders (proposed)

 


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6.2

Attachment mm

DA12 - 02 Food Business Registration (proposed)

 


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6.2

Attachment nn

DA12 - 03 Appoint authorised officers and designated officers (proposed)

 


Policy and Legislation Committee                                  110                                                      22 September 2021

6.3             SOUTH WEST DESIGN REVIEW PANEL AND ADOPTION OF PROPOSED LOCAL PLANNING POLICY 4.13 - DESIGN REVIEW

STRATEGIC THEME

LIFESTYLE - A place that is relaxed, safe and friendly with services and facilities that support healthy lifestyles and wellbeing.

STRATEGIC PRIORITY

2.8 Plan for and facilitate the development of neighbourhoods that are functional, green and provide for diverse and affordable housing choices.

SUBJECT INDEX

Local Planning Policy

BUSINESS UNIT

Development Services

REPORTING OFFICER

Manager Development Services - Lee Reddell

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   Draft Policy for consultation

Attachment b    Schedule of Submissions

Attachment c    Revised Policy for adoption  

 

OFFICER RECOMMENDATION

That the Council:

1.         Pursuant to Clause 4 of Schedule 2 of the Planning and Development (Local Planning Schemes) Regulations 2015 adopt as final LPP 4.13 : Design Review, as set out at Attachment C.

2.         Publish a notice of adoption in a newspaper circulating within the Scheme area in accordance with clause 4 of Part 2 of Schedule 2 – Deemed Provisions for Local Planning Schemes of the Planning and Development (Local Planning Schemes) Regulations 2015 of the Policy set out in 1 above.

 

EXECUTIVE SUMMARY

Council is asked to consider final adoption of LPP 4.13 : Design Review as set out in Attachment C, which since being initiated by Council, has been publicly advertised in accordance with the Planning and Development (Local Planning Schemes) Regulations 2015 (‘Regulations’).  A minor change is recommended, addressing an issue identified in one of the submissions.

 

BACKGROUND

Design Review Panels (DRPs) are groups of independent experts who advise on the design quality of a project or development proposal. DRPs have been operating in Australia for over 20 years and 80% of Perth’s metropolitan local governments have established a DRP, which are now reinforced through the State Government’s Design WA initiative.

 

State Planning Policy 7.0 ‘Design of the Built Environment’ (SPP 7.0) states that planning authorities, including local government, should establish or arrange access to design review processes to review:

·        complex planning proposals;

·        proposals identified as benefitting from design review; or

·        matters as set out in the Regulations or recommended in the Design Review Guide.

 


 

Officers have been working with other local authorities within the South West region to establish a South West Design Review Panel (SWDRP). A Memorandum of Understanding (MOU) and Terms of Reference (TOR) have been prepared by the participating local governments. The advantages of a SWDRP are lower costs and a larger pool of experts to draw from, thus improving the potential pool of expertise and lowering the risk of conflict of interest.

 

The proposed Policy was drafted to achieve three things:

1.         establish a ‘head of power’, in creating a relationship between the development assessment and design review process;

2.         outline the types of applications that will require design review; and

3.         outline process on fees and charges.

 

At this point in time, there is commitment to a SWDRP from the following local governments:

•          City of Bunbury

•          Shire of Augusta Margaret River

•          Shire of Harvey

•          Shire of Collie

 

Draft LPP 4.13 : Exempt Development (Attachment A) was initiated by Council on 12 May 2021 for the purposes of public consultation. The Policy was advertised via a notice placed in the local newspaper for four consecutive weeks and a portal was created on the City’s Your Say platform website for the online lodgement of submissions.  A total of two submissions were received.

 

OFFICER COMMENT

Design review is an independent and impartial evaluation process through which a panel of experts on the built environment assess the design of a proposal. DRPs can be used for development applications, major public works, structure plans, local development plans and design related local planning policies.

 

DRPs often contain a wide range of experience that can cover architecture, heritage, urban design, landscape architecture and planning. Their focus is principally on pre-lodgement advice, so that the DRP can influence the drafting of plans before the applicant is committed through fully worked up drawings.

 

In order for the SWDRP to function, an MOU has been drafted between the participating local governments. The MOU is an agreement between the parties to work together to establish and maintain a DRP. The MOU states that participating local governments will contribute equally to funding an Expression of Interest (EOI) process and ongoing member recruitment costs, after which the DRP will operate on a ‘user pays’ basis, where costs incurred presenting an item (such as panel member sitting fees) will be borne by the local government presenting an item.

 

Further operational guidance will be provided by way of the TOR document which sets out the role and stature of the DRP, governance, member appointment and responsibilities, remuneration, and meeting procedures. Importantly, the TOR refer to a Policy to establish the types of applications that will require design review, as well as a process around fees and charges.

 

A Policy is advantageous as it can be tailored from place to place to recognise the differences in development scale and frequency between local authorities. Under Part 3 of the Deemed Provisions of the Regulations, the City must have regard to a Policy in determining a development application, meaning the proposed Policy will provide a relationship between the development assessment and design review process.

Council approval for the MOU or TOR is not proposed given their operational nature. 

 

Consultation

The draft Policy was advertised in the local newspaper for four consecutive weeks and a portal was created on the City’s Your Say platform website for the online lodgement of submissions. 

 

A total of two submissions were received which can be viewed in full in Attachment B.

 

In summary, the submissions raised the following queries and concerns:

 

1.         Questioned whether residential development would be included;

 

2.         Unclear who determines whether the design review process is triggered;

 

3.         No definition for ‘major development proposal’;

 

4.         Unclear what timeframes will apply;

 

5.         Excludes ratepayers and residents from the decision making process.

 

In response to these submissions, the following comments are made:

 

1.         Mixed-use development containing a residential component or Multiple Dwelling development is likely to trigger review by the SWDRP.  There is no intention however to capture ‘Single Houses’, irrespective of scale or development value, through this process and it is noted that Single Houses are also excluded from the Development Assessment Panel decision making pathway.  For the purpose of clarity, a note is to be added to the proposed Policy (Attachment C) which specifies that all Single Houses are excluded from consideration under the Policy.

 

2.         City officers engaged in pre-application discussion with an applicant will determine, in consultation with the Director Planning and Development, whether an application is appropriate to be considered by the SWDRP. 

 

3.         No definition of ‘major development’ has been included in order to ensure there is the flexibility to request design review for any application that the City believes is of sufficient scale or importance to justify review by the SWDRP.  It is expected that mixed use commercial development, Multiple Dwellings, significant tourism proposals, most mandatory DAP applications will be captured.  There is also the ability to consider strategic planning projects such as Precinct Structure Plans or significant City led projects through this process.

 

4.         Timeframes for provision of advice on reviewed projects will be set through the TOR.  It is not intended that the SWDRP meetings be open to the public as it is considered likely that many developers will choose not to engage in the process based on concerns relating to commercial confidentiality prior to advice from the SWDRP on whether a design is likely to be supported and a decision can be made on whether to lodge a formal development application.  It is noted however that the advice issued by the SWDRP for any application will be a public document and will be required to be addressed in consideration of any subsequent development application.


 

5.         The design review process does not exclude rate payers and residents from the decision making process.  The SWDRP is intended to offer advice only and has no decision making power.  All applications reviewed by the SWDRP will be required to seek development approval through the normal development application pathway and given the nature of development captured through this process, it is expected that the vast majority, if not all of the applications which undertake review, will be advertised for public consultation.

 

Future Scheme Amendment

A Scheme Amendment may be appropriate at some point to introduce a trigger to require applicants of specified development to participate in the design review process, however this is not considered necessary at this time, given the level of positive buy-in from applicants to the informal design review processes being undertaken on significant development within the City currently.  Officers will liaise with the Department of Planning Lands and Heritage on this matter and seek to introduce a relevant provision as part of the Scheme Review process or amendment if deemed necessary.

 

Statutory Environment

The key statutory environment is set out in the Planning and Development Act 2005 and related subsidiary legislation, including the City of Busselton Local Planning Scheme No. 21 (the Scheme) and the Planning and Development (Local Planning Schemes) Regulations 2015 (the Regulations), especially Schedule 2 (Deemed Provisions) of the Regulations, which form part of the Scheme.

 

Division 2, clause 4 sets out the procedure for making a local planning policy.

 

Relevant Plans and Policies

State Planning Policy 7.0 Design of the Built Environment (SPP7.0)

SPP7.0 states that planning authorities should establish or provide access to design review processes for complex planning proposals. This is set out in the WAPC’s “Design Review Guide – Guidance for Local Governments to set up and operate a design review process”.

 

Financial Implications

Establishment and Maintenance Costs

Estimates put establishment costs at $5,000, covering advertising and circulating an Expression of Interest Campaign (EOI). This estimate is based on costings from the City of Stirling.  The South West Development Commission have issued a $3000 grant towards establishment of the SWDRP with the remaining costs to be shared between the participating local governments.

 

In initial discussions between the participating local governments, an option to ‘rotate’ the hosting of the DRP was explored, such that the Cities of Bunbury and Busselton and the Shire of Augusta Margaret River take turns in hosting the DRP meetings and undertaking the administrative tasks, including preparing and circulating agendas, invites, taking minutes and formulating recommendations with the Panel Chair.

 

While this would reduce this workload to once quarterly, which is more manageable within existing staffing arrangements, upon reflection, it is considered more appropriate that the City of Busselton volunteer to trial hosting the DRP administrative function for a 12 month period from establishment. This is in order to ensure that the initial set up of administrative procedures, development of templates, workflow changes, records keeping guidelines, meeting and panel member arrangements, payment of panel sitting fees etc are embedded for the sake of consistency and efficiency.  It is also expected that the City of Busselton will generate the most demand for this service given the higher number of development applications processed by the City.

 

It is intended that an administration fee be charged to the participating local governments for each application reviewed through the DRP process to assist with covering staffing costs. The value of this fee is yet to be determined but will be reviewed and established through an agreed fee arrangement with participating local governments prior to establishment of the Panel.  Before the end of the initial 12 month period, it is proposed that the City of Busselton review the workload impacts with a view to either continuing or suggesting alternate administrative arrangements be agreed.

 

Meeting Costs

The TOR sets the remuneration of the Panel Members, which is at $500 per meeting for the chair and $400 per meeting for other members, inclusive of preparation time. Costings have been based on five panel members, but this may be adjusted down depending on the outcomes of the EOI process. Based on this approach, one meeting would cost $2,100.

 

The estimated budget for operating the SWDRP would be $33,070 annually based on 12 meetings per year. Under the terms of the draft MOU, the meeting costs would be divided equally between those local governments with matters to be considered at a particular meeting.  This model is yet to be tested through an EOI process however so there may need to be changes to the model if there is insufficient interest based on offering only one fee per meeting, irrespective of the number of matters to be considered.

 

Based on the details above, a budget allocation of $35,470 for the 2021/22 financial year was requested through the budgeting process. This budget bid has not progressed as it appears to have been missed in the budget setting process but options for funding the City’s costs through the existing consultancy budgets are being investigated.  The costs to run the DRP process are expected to fluctuate dependent on the level of development proposed on any given year and could be returned to general municipal funds at budget review if unlikely to be expended in the financial year.  It is noted that development applications the subject of Design Review are likely to generate significant application fees which would off-set the cost of the review.  City projects referred to DRP would need to account for referral costs in the project budget.

 

Stakeholder Consultation

In accordance with the Regulations, it is proposed that a notice be placed in the local newspaper advising that LPP 4.13 : Design Review has been adopted as final.

 

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 officer recommendation, the Council could:

1.         Modify the Policy recommended to be adopted as final; or

2.         Not to adopt the Policy recommended to be adopted as final.

CONCLUSION

It is recommended that Council support the proposed adoption of the Policy as described in this report.


 

TIMELINE FOR IMPLEMENTATION OF OFFICER RECOMMENDATION

Implementation of the officer recommendation would involve notification of the adopted Policy as outlined in the consultation section of this report above. It is expected that this will commence within one month of the Council decision.

 


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6.3

Attachment a

Draft Policy for consultation

 



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6.3

Attachment b

Schedule of Submissions

 


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6.3

Attachment c

Revised Policy for adoption

 


 


Policy and Legislation Committee                                  116                                                      22 September 2021

7.               General Discussion Items

 

8.               Next Meeting Date

 

9.               Closure