Council Agenda

 

 

 

13 October 2021

 

 

 

 

 


ALL INFORMATION AVAILABLE IN VARIOUS FORMATS ON REQUEST

city@busselton.wa.gov.au

 

 


CITY OF BUSSELTON

MEETING NOTICE AND AGENDA – 13 October 2021

 

 

 

TO:                  THE MAYOR AND COUNCILLORS

 

 

NOTICE is given that a meeting of the Council will be held in the Council Chambers, Administration Building, Southern Drive, Busselton on Wednesday, 13 October 2021, commencing at 5.30pm.

 

Your attendance is respectfully requested.

 

 

DISCLAIMER

Statements or decisions made at Council meetings or briefings 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 Council meeting or briefing.

 

 

 

Mike Archer

 

CHIEF EXECUTIVE OFFICER

 

1 October 2021


CITY OF BUSSELTON

Agenda FOR THE Council MEETING TO BE HELD ON 13 October 2021

TABLE OF CONTENTS

 

ITEM NO.                                        SUBJECT                                                                                                                              PAGE NO.

1....... Declaration of Opening, ACKNOWLEDGEMENT OF COUNTRY and Announcement of Visitors. 5

2....... Attendance. 5

3....... Prayer. 5

4....... Application for Leave of Absence. 5

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

6....... Announcements Without Discussion.. 5

7....... Question Time For Public. 5

8....... Confirmation and Receipt Of Minutes. 6

Previous Council Meetings. 6

8.1          Minutes of the Council Meeting held 22 September 2021. 6

Committee Meetings. 6

8.2          Minutes of the Policy and Legislation Committee Meeting held 22 September 2021. 6

9....... RECEIVING OF Petitions, Presentations AND DEPUTATIONS. 6

10..... QUESTIONS BY MEMBERS OF WHICH DUE NOTICE HAS BEEN GIVEN (WITHOUT DISCUSSION). 6

11..... Items brought forward for the convenience of those in the public gallery. 6

12..... Reports of Committee. 7

12.1        Policy and Legislation Committee - 22/9/2021 - LOCAL GOVERNMENT PROPERTY AMENDMENT LOCAL LAW 2021. 7

12.2        Policy and Legislation Committee - 22/9/2021 - ANNUAL STATUTORY REVIEW OF DELEGATIONS OF AUTHORITY. 52

12.3        Policy and Legislation Committee - 22/9/2021 - SOUTH WEST DESIGN REVIEW PANEL AND ADOPTION OF PROPOSED LOCAL PLANNING POLICY 4.13 - DESIGN REVIEW... 114

13..... Planning and Development Services Report. 125

13.1        AMENDMENT NO. 50 TO LOCAL PLANNING SCHEME NO. 21 (LOT 81 (18), STRATA PLAN 17588 (20), AND LOTS 115 TO 127 (26-50) GEOGRAPHE BAY ROAD, DUNSBOROUGH) - CONSIDERATION FOR ADOPTION FOR FINAL APPROVAL. 125

13.2        AMENDMENT NO. 40 (MODIFICATIONS TO THE ZONING TABLE) - CONSIDERATION FOR FINAL ADOPTION.. 163

14..... Engineering and Work Services Report. 319

14.1        RFT 04/21 ROAD NETWORK UPGRADE PEEL TERRACE / CAUSEWAY ROAD INTERSECTION UPGRADE STAGE 1. 319

15..... Community and Commercial Services Report. 326

15.1        MARKETING AND EVENTS REFERENCE GROUP OUTCOMES. 326

16..... Finance and Corporate Services Report. 332

16.1        COMMERCIAL LEASE - PORTION OF OLD COURTHOUSE ARTGEO COMPLEX. 332

17..... Chief Executive Officers Report. 337

17.1        COUNCILLORS' INFORMATION BULLETIN.. 337

18..... Motions of which Previous Notice has been Given.. 341

19..... urgent business. 341

20..... Confidential Matters. 342

20.1     CEO PERFORMANCE REVIEW                                                                                                                   342

21..... Closure. 343

 


Council                                                                                      6                                                                 13 October 2021

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

 

2.               Attendance 

Apologies

Approved Leave of Absence

 

Nil

 

3.               Prayer

 

4.               Application for Leave of Absence

 

5.               Disclosure Of Interests

 

6.               Announcements Without Discussion

Announcements by the Presiding Member

 

7.               Question Time For Public

Response to Previous Questions Taken on Notice

Public Question Time For Public


 

8.               Confirmation and Receipt Of Minutes 

Previous Council Meetings

8.1             Minutes of the Council Meeting held 22 September 2021

Recommendation

That the Minutes of the Council Meeting held 22 September 2021 be confirmed as a true and correct record.

 

Committee Meetings

8.2             Minutes of the Policy and Legislation Committee Meeting held 22 September 2021

Recommendation

That the Minutes of the Policy and Legislation Committee Meeting held 22 September 2021 be noted.

 

9.               RECEIVING OF Petitions, Presentations AND DEPUTATIONS

Petitions

Presentations

Deputations

 

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

 

11.             Items brought forward for the convenience of those in the public gallery


Council                                                                                      8                                                                  13 October 2021

12.             Reports of Committee

12.1           Policy and Legislation Committee - 22/9/2021 - 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

 

This item was considered by the Policy and Legislation Committee at its meeting on 22/9/2021, the recommendations from which have been included in this report.

 

COMMITTEE RECOMMENDATION

That the Council:

1.         Commences the law-making process for the City of Busselton Local Government Property Amendment Local Law 2021, with clauses 5.1(1)(a)(i)-(ii) amended to refer to being under the age of 10 years and a responsible person over the age of 16 years; 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.

 

 

Reasons:              The Committee recommended that the relevant ages under clauses 5.1(1)(a)(i)-(ii) should  be in accordance with the WA Department of Health ‘Code of Practice for the Design, Construction, Operation, Management and Maintenance of Aquatic Facilities’.

 

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.

 


Council

18

13 October 2021

12.1

Attachment a

Local Government Property Amendment Local Law 2021

 







Council

51

13 October 2021

12.1

Attachment b

Consolidated LG Property Local Law incorporating proposed changes marked up

 


































Council                                                                                      64                                                               13 October 2021

12.2           Policy and Legislation Committee - 22/9/2021 - 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    DA 1 - 07 Inviting Rejecting and Accepting Tenders (Committee Amendments)

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

Attachment h   DA 1 - 10 Panels of Pre-Qualified Suppliers (Committee Amendments)

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    DA 3 - 03 To Insitute a Prosecution or to Issue an Infringement (Committee Amendments)

Attachment z    DA 3 - 04 Variation of Prohibited and Restricted Burning TImes (Committee Amendments)

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 Committee

Attachment ak DA11 - 02 Audit and Risk Committee (amended)

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)  

 

This item was considered by the Policy and Legislation Committee at its meeting on 22/9/2021, the recommendations from which have been included in this report.

 

COMMITTEE RECOMMENDATION

That the Council adopts the City of Busselton Delegations of Authority, inclusive of Committee amendments, 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

No changes

DA1 – 08
Expression of Interest for Goods and Services

No changes

DA1 – 10
Panels of Pre-Qualified Suppliers

Change to Conditions:

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

Change to Conditions:

Express power to delegate has been corrected to s.59(3) of the Bush Fires Act 1954.

DA3 – 04
Variation of Prohibited and Restricted Burning Times

Change to Conditions:

Express power to delegate has been corrected to s.17(10) of the Bush Fires Act 1954.

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.

 

Reasons:              The Committee recommended the retention of the maximum threshold of $500,000 in relation to the value of the contract or service under DA 1 - 07 and DA 1 – 10; corrections to the express powers for DA 3 – 03 and DA 3 – 04 under the Bush Fires Act 1954; and minor typographical amendments to various delegations.

 

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:

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 by 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.

 


Council

66

13 October 2021

12.2

Attachment a

DA1 - 01 Issuing notices

 


Council

67

13 October 2021

12.2

Attachment b

DA1 - 02 Entry in an emergency

 


Council

68

13 October 2021

12.2

Attachment c

DA1 - 03 Abandoned vehicle wreck

 


Council

69

13 October 2021

12.2

Attachment d

DA1 - 04 Confiscated or uncollected goods

 


Council

70

13 October 2021

12.2

Attachment e

DA1 - 05 Closure of thoroughfares

 


Council

72

13 October 2021

12.2

Attachment f

DA 1 - 07 Inviting Rejecting and Accepting Tenders (Committee Amendments)

 



Council

73

13 October 2021

12.2

Attachment g

DA1 - 08 Expression of interest for goods and services

 


Council

74

13 October 2021

12.2

Attachment h

DA 1 - 10 Panels of Pre-Qualified Suppliers (Committee Amendments)

 


Council

75

13 October 2021

12.2

Attachment i

DA1 - 11 Amendments to the consolidated parking scheme

 


Council

76

13 October 2021

12.2

Attachment j

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

 


Council

77

13 October 2021

12.2

Attachment k

DA1 - 13 Dispose of sick or injured animal

 


Council

79

13 October 2021

12.2

Attachment l

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

 



Council

81

13 October 2021

12.2

Attachment m

DA1 - 15 Rates and service charges

 



Council

82

13 October 2021

12.2

Attachment n

DA1 - 16 Investment of surplus funds

 


Council

83

13 October 2021

12.2

Attachment o

DA1 - 19 Urgent legal representation

 


Council

84

13 October 2021

12.2

Attachment p

DA1 - 20 Administer local laws (amended)

 


Council

85

13 October 2021

12.2

Attachment q

DA1 - 21 Acquisition of Property

 


Council

87

13 October 2021

12.2

Attachment r

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

 



Council

89

13 October 2021

12.2

Attachment s

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

 



Council

90

13 October 2021

12.2

Attachment t

DA1 - 23 Payments from municipal fund or trust fund

 


Council

91

13 October 2021

12.2

Attachment u

DA1 - 24 Affixing of the common seal

 


Council

92

13 October 2021

12.2

Attachment v

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

 


Council

93

13 October 2021

12.2

Attachment w

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

 


Council

94

13 October 2021

12.2

Attachment x

DA3 - 02 Appointment of Bush Fire Control officers

 


Council

95

13 October 2021

12.2

Attachment y

DA 3 - 03 To Insitute a Prosecution or to Issue an Infringement (Committee Amendments)

 


Council

96

13 October 2021

12.2

Attachment z

DA 3 - 04 Variation of Prohibited and Restricted Burning TImes (Committee Amendments)

 


Council

97

13 October 2021

12.2

Attachment aa

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

 


Council

98

13 October 2021

12.2

Attachment bb

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

 


Council

99

13 October 2021

12.2

Attachment cc

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

 


Council

102

13 October 2021

12.2

Attachment dd

DA7 - 01 Development control (amended)

 




Council

103

13 October 2021

12.2

Attachment ee

DA7 - 02 Unauthorised development

 


Council

104

13 October 2021

12.2

Attachment ff

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

 


Council

105

13 October 2021

12.2

Attachment gg

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

 


Council

106

13 October 2021

12.2

Attachment hh

DA10 - 01 Designated Authorised Officers (amended)

 


Council

107

13 October 2021

12.2

Attachment ii

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

 


Council

108

13 October 2021

12.2

Attachment jj

DA11 - 01 Meelup Regional Park Committee

 


Council

110

13 October 2021

12.2

Attachment kk

DA11 - 02 Audit and Risk Committee (amended)

 



Council

111

13 October 2021

12.2

Attachment ll

DA12 - 01 Prohibition orders (proposed)

 


Council

112

13 October 2021

12.2

Attachment mm

DA12 - 02 Food Business Registration (proposed)

 


Council

113

13 October 2021

12.2

Attachment nn

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

 


Council                                                                                      119                                                             13 October 2021

12.3           Policy and Legislation Committee - 22/9/2021 - 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

 

This item was considered by the Policy and Legislation Committee at its meeting on 22/9/2021, the recommendations from which have been included in this report.

 

COMMITTEE 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.

 

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 $3,000 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.  


Council

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13 October 2021

12.3

Attachment a

Draft Policy for consultation

 



Council

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13 October 2021

12.3

Attachment b

Schedule of Submissions

 


Council

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13 October 2021

12.3

Attachment c

Revised Policy for adoption

 


 


Council                                                                                      132                                                             13 October 2021

13.             Planning and Development Services Report

13.1           AMENDMENT NO. 50 TO LOCAL PLANNING SCHEME NO. 21 (LOT 81 (18), STRATA PLAN 17588 (20), AND LOTS 115 TO 127 (26-50) GEOGRAPHE BAY ROAD, DUNSBOROUGH) - CONSIDERATION FOR ADOPTION FOR FINAL APPROVAL

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 Scheme No. 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   Location Plan

Attachment b    Aerial Photo

Attachment c    Scheme Amendment Map

Attachment d   Schedule of Submissions

Attachment e    Schedule of Modifications  

 

OFFICER RECOMMENDATION

That the Council:

1.         In pursuance of the Planning and Development (Local Planning Schemes) Regulations 2015, adopts Amendment 50 to Local Planning Scheme No. 21 for final approval, in accordance with the modifications proposed in the Schedule of Modifications shown at Attachment E, for the purposes of amending the Scheme map by modifying the residential density code from R80 to R60 over Lot 81 (18), Strata Plan 17588 (20) and Lots 115 to 127 (26-50) Geographe Bay Road, Dunsborough, as set out at Attachment C.

2.         Advise the Western Australian Planning Commission that Amendment 50 is considered a ‘standard’ amendment pursuant to the Planning and Development (Local Planning Schemes) Regulations 2015 as it is:

(a)       an amendment relating to a zone or reserve that is consistent with the objectives identified in the Scheme for that zone or reserve;

(b)       an amendment that would have minimal impact on land in the Scheme area that is not the subject of the amendment;

(c)       an amendment that does not result in any significant environmental, social, economic or governance impacts on land in the Scheme area.

3.         Pursuant to r.53 of the Planning and Development (Local Planning Schemes) Regulations 2015, endorses the Schedule of Submissions at Attachment D, which has been prepared in response to the public consultation process undertaken in relation to Amendment 50.

4.         Upon preparation of the necessary documentation, refers the adopted Amendment 50 to the Western Australian Planning Commission for consideration and determination in accordance with the Planning and Development Act 2005.

 

5.         Pursuant to r.56 of the Planning and Development (Local Planning Schemes) Regulations 2015, should directions be given that modifications to Amendment 50 are required, direct these modifications to be undertaken accordingly, on behalf of the Council, unless they are considered by officers likely to significantly affect the purpose and intent of the Amendment, in which case the matter shall be formally referred back to the Council for assessment and determination.

 

EXECUTIVE SUMMARY

The purpose of this report is to set out recommendations regarding the final adoption of Amendment No. 50 (the Amendment) to Local Planning Scheme No. 21 (LPS 21), following consideration of the submissions received through the consultation process. The amendment proposes a reduction to the density coding of 23 residential lots fronting Geographe Bay Road on the Dunsborough foreshore, from R80 to R60. A location plan and aerial photograph are provided at Attachments A and B, respectively.

The Amendment was initiated by Council in February 2021 (C2102/021) following community interest in a recent development approval (DA 20/0624) in this locality, granted by the Regional Joint Development Assessment Panel (RJDAP). The majority of submissions to the Amendment demonstrate concern about future development in the locality and support for the proposed down-coding.

Officers recommend that Council seek finalisation of the Amendment in accordance with the modifications in the Schedule of Modifications provided at Attachment E.

BACKGROUND

Note: this section of the report has been drafted by an independent planning consultant (Ms Judi Bell) who is not employed by the City. This consultant was engaged by the City to prepare the Amendment documents, draft comments and recommendations in respect of submissions received (Schedule of Submissions, Attachment D), and assist with the drafting of this Council report. Minor edits only have been made by officers and the consultant has indicated no objection to those edits. The views expressed in this section of the report do not necessarily reflect the views or understandings of City officers.

The Amendment was initiated by Council in response to community concerns about future development on Geographe Bay Road along the foreshore. This concern was prompted by the approval of DA 20/0624, a four storey apartment building on Lots 115 and 116 (26-28) Geographe Bay Road and Lots 139 and 140 (23-25) Lorna Street, by the RJDAP in February 2021.  Objections to DA 20/0624 centred on the height and bulk of the proposed development in this foreshore precinct, which was regarded as important to the attraction and ambience of Dunsborough as a residential and tourist area. Approval for the proposed development, including additional plot ratio requirements, setback dispensations and a parking reduction, was granted on the grounds that it satisfied the performance requirements of current state planning policies and was supported by a design assessment undertaken by consultants on behalf of the City. Some submitters indicated that they had been advised by the City that a three storey height limit would apply in this area as required in LPS 21.

This first apartment building development, as is often the case when areas are up-coded, demonstrated the potential and the impact of the R80 coding in this locality. The amalgamation of four lots for this development, their juxtaposition with Seymour Park and dual road access, enabled the design of a substantial four storey building on this site. Approval of this application highlighted the scope of height control provisions in LPS 21, providing for development above three storeys.


 

It also raised wider concern about the ability of State and local planning instruments to achieve an acceptable design outcome in this locality without the support of a site-specific strategic framework and design guidelines for subdivision and development. Overall, there was significant concern about the transitioning of development in this area, and this approval was seen as an undesirable precedent for development along this sensitive foreshore strip.

The substantial increase in coding of lots from R15 to R80 was approved some four years ago as part of Amendment No. 1 to LPS 21. This change was justified at the time on the basis that it reflected the recommendations of a number of strategic plans and studies for the Dunsborough Town Centre. A proportion of the submissions opposed the coding change citing loss of “village” atmosphere as a result of the visual impact of increased height and bulk of buildings, increased noise and light, overshadowing, loss of privacy, and increased traffic and parking demand. The R80 coding was supported by the Council and approved by the Minister on the grounds that it reflected the strategic direction for the Town. It was considered that any negative impacts could be managed through the development approval process, the provisions of LPS 21 with regard to permitted heights, the Residential Design Codes (R-Codes), and comprehensive assessment within urban design guidelines. The City also indicated that it was committed to constructive engagement with the community to ensure transitional improvement in the town.

Since the approval of Amendment No.1 new state policies have been introduced to guide the design of residential buildings at a higher density. An urban design assessment which includes the subject lots (apart from Lot 81 (18) Geographe Bay Road) was completed in 2021 to assist with the preparation of a Precinct Structure Plan (PSP) for the Dunsborough Town Centre, but to date no specific design guidelines or special provisions have been prepared for this area. The City is actively engaged in the preparation of the PSP and preliminary consultation has revealed community concern about density and height of future development in the area.

Summary of Submissions to Amendment 50

A total of 114 submissions were received during public advertising of the Amendment, including one public objection and no agency objections. A Schedule of Submissions is provided at Attachment D.

The support for the Amendment followed several consistent themes. In the first place, submissions emphasised the need to retain the seaside village feel of Dunsborough particularly outside the Town Centre and along the foreshore. Great emphasis was placed on protecting and enhancing its small, intimate and unique character and the special qualities of the bay area. In this regard four storey development was seen as conflicting with this important objective and also perceived as likely to obstruct views to the foreshore coming from the Town Centre, block out northern sun to adjoining properties and contribute to increased traffic and parking problems.

There was general support for the R60 down-coding, in particular the three storey height control. R60 was seen by some respondents as achieving a balance between providing for manageable residential density and at the same time providing a transition between the Town Centre and the seafront. Some submissions indicated that further design controls should be implemented such as requiring greater setbacks for higher buildings to avoid solid walls opposite the foreshore and measuring setbacks from balcony lines rather than wall lines. A number of submissions favoured a two storey limit to maintain the low density environment along the foreshore.

Several submissions raised concerns about past assurances by the City that the height of the development would be limited to three storeys on the foreshore, through specific provisions in LPS 21 regarding development within 150 metres of the mean high water mark. The ‘loophole’ that allowed the approval of a four storey building approval was questioned and the importance of removing this to safeguard the future amenity of the foreshore locality.

Four submissions were received from owners of lots directly affected by the proposed down-coding to R60. Three of these, the owners of Lot 119 (34), Lot 122 (40) and Lot 126 (48) Geographe Bay Road, supported the coding of R60 citing concern with the impact of four storey buildings on the surrounding lots and the vista and views from the park and beachfront. The submissions emphasised the need to protect the space, peace and environment of the foreshore and the coastal feel and integrity of the town.

One objection to the Amendment was received on behalf of the owner of the four lots granted development approval for DA 20/0624. This submits that the Amendment should be modified and the R80 coding on this land retained as there is already a development approval in place, the proposed design is broadly consistent with an R80 coding, and the development approval is currently being implemented. It is argued that the land has unique characteristics abutting a public reserve, has dual frontage, constitutes a large development site and is in close proximity to the R-AC3 coding of the Town Centre. The submission also questioned the planning rationale behind the Amendment as the change from R80 to R60 is not apparently supported by strategic planning, planning principles or urban design modelling. Should the Amendment be modified over Lots 115 and 116 (26-28) Geographe Bay Road, given the unique attributes of the land and the fact that there is a development approval in place, the owner raises no objection to the down-coding of the remaining lots.

Current strategic direction for higher density residential development

There continues to be significant emphasis in State Government planning direction on increasing residential density in urban areas to provide for more diverse accommodation choices and to achieve a more sustainable footprint from an economic, environmental and social point of view. The approach of imposing higher density codings without adequate design control and guidance over existing residential areas has proved to be a “blunt instrument” in several cases with a corresponding adverse impact on urban form, streetscapes and the adjoining areas. Many initiatives in this regard throughout urban areas in WA have raised community concern prompting some successful attempts to reduce density codings and substantial review of State policy in the past few years. State Planning Policy 7.0 – Design of Built Environment (SPP 7.0) was gazetted in 2019 to address these issues more comprehensively. It identifies important design principles to be taken into consideration - context and character, landscape quality, built form and scale, functionality and build quality, sustainability, amenity, legibility, safety, community and aesthetics.

The R-Codes indicate that a local government may, with the approval of the WAPC, prepare local planning policies, local development plans, structure plans, and activity centre plans to deal with specific local circumstances. This acknowledgement of the need to protect sensitive and unique areas, such as coastal towns and foreshores, using these planning instruments reflects widespread practice in Australia and is of particular relevance to Dunsborough.

The Local Planning Strategy 2020 is the most recently endorsed strategic planning document for the City of Busselton, and recommends the continued growth of the Dunsborough Urban Area through the redevelopment and consolidation of the existing urban area, and identification of suitable areas for planned, progressive expansion. In this respect, it deals in broad terms with the issue of increased density and where it should be applied, but does not prescribe a specific density or built form outcomes.

It is intended that the PSP for the Dunsborough Town Centre, which is being progressed, will provide more guidance on how such development should occur in the Study Area. An Urban Design Assessment Report prepared by Urbis as part of the PSP process identified that the Town Centre had its own “sense of place” and a low key friendly atmosphere.


 

The report came up with broad urban design objectives for identified precincts including the area the subject of the amendment defined as Dunn Bay East. Within this particular area it identified the potential for inconsistent streetscapes and the need to ensure that scale and transitioning between areas was properly managed. The Report was again broad in scope and not intended to be accompanied by specific recommendations to address the above design issues.

Future development along Geographe Bay Road

The application of the R80 coding in Amendment No. 1 to the local planning scheme, a substantial change from R15 coding in 2017, was based on broad recommendations in strategic documents including the objective of linking the town centre with the foreshore and providing for more activation from Dunn Bay Road southwards along Geographe Bay Road. The amendment created the opportunity for a range of mixed uses on the land coded R80 subject to the preparation of urban design guidelines or special provisions to address a range of issues. These included  appropriate building setbacks, built form articulation, architectural design, function, bulk, scale, massing, grain, signage, vehicular access, and  location of crossovers/provision of onsite car parking; roofscapes, skylines and service installation sites. This detailed guidance has not been undertaken to date and the assessment of DA 20/0624 was carried out using the R-Codes and a design assessment of the proposal by Urbis consultants.

The design assessment of DA 20/0624 specifically addressed design principles in the absence of local design guidelines and concluded that it was a suitable design response which largely met the design principles of SPP7.0. The assessment acknowledged in terms of context and character that the proposal departed from the existing two and three storey buildings in the vicinity, but considered it appropriate in the wider residential context of three storey structures across the Town Centre. It was also justified on the basis of its location close to Dunn Bay Road and its potential to provide a gateway entry and transition between the town centre and the foreshore. The assessment placed considerable emphasis on its advantageous siting next to Seymour Park which provided the opportunity not only for visual relief and containing the park edge but also surveillance and access for the gym and café uses. It also pointed out the opportunities for servicing, legibility and transitioning of building form offered by the larger lot size and its frontage to two streets.

The majority of the remaining R80 lots subject to the Amendment are between 800 and 900 square metres and are further removed from the Town Centre. Access is limited to Geographe Bay Road, there is no abutting open space and the interface is with R15 coded residential land. The lead up to and the processing of this Amendment has highlighted the need and demand for additional design controls to provide for more rigorous assessment of higher coded development along this portion of the Dunsborough foreshore. Whilst current State design policies and possible assistance by a Design Review Committee in the future may assist in development assessment, there is a need to address wider strategic issues than building design such as the transitioning of development with surrounding areas and articulating a clear vision for the future development of the Town.

Alternative Recommendations for Amendment No. 50

The alternative courses of action by the Council regarding the progress of the Amendment in terms of the Planning and Development (Local Planning Schemes) Regulations 2015, are to support the Amendment without modification, to support the Amendment with proposed modifications or not to support the Amendment.

The R60 coding if approved in this locality would reduce the prospect of development above three storeys on the remaining foreshore lots. This coding is not in conflict with the broad urban consolidation objective for the Dunsborough Town Centre and continues to reflect the strategic direction for mixed use and higher residential development in this locality.


 

This would reflect the majority of views in submissions and signal the concern about the potential impact of the current R80 coding in this sensitive locality within the current planning framework. Given the constraints associated with developing the remaining lots and the progression of the PSP process this is unlikely to create any negative impact for landowners in the short term. It is recommended therefore that the Council resolve to seek final adoption of the Amendment.

The shortcomings of a blanket density code in this sensitive foreshore locality without supporting design guidance have been outlined above and it is recommended that the issue of more detailed analysis of potential development outcomes on the remaining lots be given priority as part of the PSP process or its recommendations for further action.

The proposed designation of the R60 coding on Lots 115 and 116 (26-28) Geographe Bay Road, whilst retaining the R80 coding on Lots 139 and 140 (23-25) Lorna Street, is potentially confusing given that the lots are being amalgamated to form one development site, with development approval for one building. In order to reflect a uniform coding over this development site, a modification to the Amendment to R80 or R60 should be required.

An R80 coding over the site would indicate the density approved for the apartment development. It would also represent an exception for this significant lot on the Dunsborough foreshore as Lots 81 and Strata Lots 1-9 across Dunn Bay Road and Lots 117- 127 Geographe Bay Road would remain coded R60. It is acknowledged that the site has some unique advantages for the design of a landmark commercial and residential development but a similar case could be argued for redevelopment of the site on the opposite corner of Dunn Bay Road.

If the R60 coding proceeds within this amendment, it will not affect the validity of the approval already issued. The development approval remains valid (notwithstanding any down-coding) unless the approval lapses and the development has not been substantially commenced. However, the development approval is the subject of an application for judicial review in the Supreme Court (unrelated to the proposed down-coding) and, depending on the outcome, this may impact on the validity of the approval.

Notwithstanding the concerns raised by the owner, it is recommended that the Amendment be modified to include Lots 139 and 140 in the R60 coding to reflect the overarching intention to down-code lots on the Dunsborough foreshore. It is envisaged that the PSP process will provide specific provisions and clearer guidance aimed at protecting the future of this unique foreshore location and this may prompt future amendments to the local planning scheme.

This recommendation for final approval and modification is made on the grounds that the proposed down-coding is not contrary to current strategic planning direction, reflects community concern about future development of this coastal locality, and will not cause a negative impact on future development of the area.


 

OFFICER COMMENT

Note: this section of the report has been drafted solely by Planning Officers who are employed by the City.

Recommended Modification to the Amendment – Scheme Map

Officers acknowledge that the proposal to down-code the subject lots from R80 to R60 broadly aligns with the strategic objective for urban consolidation and redevelopment in Dunsborough, and that it continues to allow for mixed use development in order to link the foreshore to the Town Centre.

In terms of mixed use development, land on the periphery of the Town Centre has been identified through a number of strategic documents, endorsed by Council, to allow for low-key commercial and service land uses to support the Town Centre. This was formally enacted through Amendment No. 1 and the introduction of ‘Additional Use 74’. The recent Dunsborough [Town] Centre Commercial Growth Analysis (Pracsys, 2018), commissioned to inform the Dunsborough PSP, identified that that there will be a shortfall of commercial floor-space in the Dunsborough Town Centre, to meet future demand. Mixed use development of these peripheral sites, including the subject land, will contribute to alleviating the shortfall of future demand.

Officers agree that the proposed designation of R60 coding on Lots 115 and 116 (26-28) Geographe Bay Road, whilst retaining the R80 coding on Lots 139 and 140 (23-25) Lorna Street, is potentially confusing given that the four lots have been approved for amalgamation and will form one development site, with development approval for one building. Officers also understand that a significant number of people in the community have expressed concern with four storey development on the site.

Officers also agree that, in contrast to the communication around the application of the ‘RAC-3’ Coding to the ‘Centre’ Zoned portion of the Dunsborough Town Centre, where implications in terms of building height and density were made clear, the same cannot be said to the application of the R80 coding to areas on the periphery. In part as a result of that and also having considered the submissions, officers do support the application of the R60 coding to the bulk of the land subject of the amendment.

Reflecting the recommendation of the independent planning consultant, the Schedule of Modifications provided as Attachment E indicates support for application of the R60 coding across the whole of the site. City officers are not fully supportive of that recommendation, and there are some alternatives that the Council may wish to consider – as briefly outlined in the ‘Options’ section of this report.

Recommended Modification to the Amendment - Scheme Text

Officers have recommended three additional modifications that relate to height control clauses in LPS 21. The key reason for these additional modifications is to ensure that the fundamental intent of the amendment is reflected in the Scheme – i.e. to apply a three storey height control to the affected land. The proposed changes and the more detailed rationale for them is set out below.

1.         To update clause 4.3.2 to include reference to the R60 residential density coding, to clarify that building proposals are permitted under the relevant provisions of the R-Codes.

The policy aim of the Amendment is to allow R60 coded buildings, with a three storey height control, to be proposed and considered within the Amendment area. Submissions were broadly supportive of the R60/three storey height control.


 

Current height controls in clause 4.8.1(a) require that a building containing more than two storeys must not be erected within 150 metres of the mean high water mark, which is contrary to the policy aim of the Amendment. Clause 4.8.3 is intended to provide the discretion to vary clause 4.8.1, however these modifications would provide further clarification to landowners and developers that the R-Codes can be applied.

2.         To update clause 4.8.1 to clarify that the wording “except where otherwise provided for in the Scheme” applies to both parts (a) and (b) of the clause.

Currently, it is possible that the clause may be interpreted so that wording “except where otherwise provided for in the Scheme” is applied only to part (b) of clause 4.8.1.

3.         To update clause 4.8.1 to clarify that building height is measured from natural ground level.

For proposals where a residential density coding has been designated, they would be measured consistently with ‘Figure Series 7 – Building Height’ of the Volume 1 of the R-Codes, or in accordance with ‘2.2 Building height’ in Volume 2 of the R-Codes. For non-residential proposals, this also clarifies that building height would be measured from natural ground level (which is the reference point used in practice currently).

4.         To update clauses 4.3.2 and 4.8.3 when referring to the R-Codes, to reflect amendments to Volume 1 and the introduction of Volume 2.

When drafted, clauses 4.3.2 and 4.8.3 referred to a version of the R-Codes that is now redundant. In 2019 the R-Codes was effectively split into two separate volumes and, the result is that Volume 1 still contains provisions for single houses, grouped dwellings and multiple dwellings in areas coded less than R40, however planning and design standards for multiple dwellings in areas coded R40 or greater, within mixed use development and/or activity centres, is now contained in Volume 2 – Apartments. Each volume uses different terminology when referring to design standards and performance principles, and the structure and format of Volume 2 is quite different from that of Volume 1.

In regard to providing direct reference in clause 4.3.2 to the ‘Deemed-to-Comply’ and ‘Acceptable Outcome’ provisions of Volumes 1 or 2 of the R-Codes, Parts 2.4 and 2.5 (Volume 1) and page IV (Volume 2) of the R-Codes explicitly allow for the standards in each policy to be applied with a degree of flexibility, and the exercise of judgement on the contextual merit of individual proposals. While direct reference is made in this clause to ‘Deemed-to-Comply’ and ‘Acceptable Outcome’, a proposal could still be assessed on ‘Design Principles’ and ‘Element Objectives’ of Volumes 1 or 2 of the R-Codes, as proposed in the modification to clause 4.8.3.

5.         To clarify that clauses 4.3.2 and 4.8.3 should be read in accordance with amended versions of the R-Codes.

The R-Codes is subject to reasonably regular amendments (more so than many other State planning policies). This modification provides clarity that if specific parts of the R-Codes have been referenced in the Scheme, and the structure or format of the R-Codes is subsequently changed, then the stated part of the R-Codes should be read in accordance with the amended version of the R-Codes, which may be different to what is stated in the Scheme.


 

6.         To update clause 4.8.3 to clarify that only buildings proposed on land where a residential density coding has been designated, are to be consistent with the relevant provisions of the R-Codes.

Clause 4.8.3 currently requires that applications proposing to exceed the height controls specified in clause 4.8.1 are to be assessed against the relevant criteria of clause 67 ‘Matters to be Considered’ of the Deemed Provisions, and the relevant criteria of the R-Codes. However not all land within the City is zoned Residential and, it may not always be appropriate to assess development proposing to exceed the height controls against the relevant criteria of the R-Codes. In fact, it may be the case that none of the criteria are relevant.

Detailed Urban Design Guidelines

As discussed in the Background section above, Amendment No. 1 to LSP 21 up-coded the subject sites to R80, and at the same time the opportunity for mixed use development was created. Amendment No. 1 was gazetted in 2017, at a time when the State was developing new ‘performance-based’ urban design guidance through draft policies on the design of the urban environment and, more specifically, apartments within mixed use developments and/or activity centres. In many instances, as the State introduces and ‘works through’ policy reform, local governments can be delayed in their own development of complementary policy. Indeed the State planning policies 7.0: Design of the Built Environment and 7.3: Residential Design Codes Volume 2 – Apartments were not gazetted until, respectively, February and May 2019. Any work the City had done in this policy space prior to the gazettals may have been premature and rendered redundant during the time those policies were being formulated.

Officers accept and agree that detailed urban design guidelines for all of the subject lots will provide clarity around the design of future developments. In this regard, there is an opportunity to provide a nuanced approach in focused ‘design response areas’ through the Dunsborough PSP, in a manner that strategically provides for residential and commercial growth, and also listens and responds to community concern. A considerable amount of work in researching and collating information and data in respect to the preparation of the Dunsborough PSP has already been carried out, and it is anticipated that this will be presented to Council, for endorsement to advertise, later in 2021.

Statutory Environment

The key statutory documents relevant to this proposal include the Planning and Development Act 2005, the Planning and Development (Local Planning Schemes) Regulations 2015, and the relevant objectives and provisions of the City of Busselton Local Planning Scheme No. 21. Each is discussed below under appropriate subheadings.

Planning and Development Act 2005

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

Planning and Development (Local Planning Schemes) Regulations 2015

The Planning and Development (Local Planning Schemes) Regulations 2015 (the Regulations), which came into operational effect on 19 October 2015, identify three different levels of amendments – basic, standard and complex. The resolution of the local government is to specify the level of the amendment and provide an explanation justifying this choice.  This Amendment is considered to be a ‘standard’ amendment.


 

Local Planning Scheme No. 21

The subject land is zoned ‘Residential’ with a residential density coding of R80; and, is identified in Schedule 2 ‘Additional Uses’ no. A74. Land uses and conditions specified for A74 are:

LAND USE PERMITTED/SPECIFIED

CONDITIONS

Guesthouse

Medical Centre

Office

Consulting Rooms

Restaurant/Café

Shop

Tourist Accommodation

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

2.         Shop’ land uses may be permitted at ground floor level only and occupy 50% of total development floor space, up to a maximum area of 300m2 per lot.

3.         A nil setback to the street shall be considered for active frontages.

4.         The provisions of Clause 4.25 relating to cash in lieu of car parking shall apply.

5.         Urban design guidelines (and/or Special Provisions) shall be prepared and adopted as a Local Planning Policy to address the following matters in relation to any proposed development:

a.         Appropriate building setbacks to prevent or suitably mitigate overshadowing or overlooking of neighbouring properties;

b.         Built form articulation, architectural design, function, bulk, scale, massing, grain, signage, and surveillance (in relation to the streetscape, surrounding buildings, adjoining land uses and the overall character and amenity of the subject development area);

c.         Vehicle access, and the location of crossovers/provision of onsite car parking;

d.         Roof scapes, skylines and service installation sites to ensure minimal visual intrusion.

Relevant Plans and Policies

The key policy documents relevant to this proposal are the Dunsborough Town Centre Conceptual Plan 2014, and the Local Planning Strategy. Each is discussed below under appropriate subheadings.

Dunsborough Town Centre Conceptual Plan 2014

This Plan shows land along Chieftain Court, Geographe Bay Road and Dunn Bay Road designated for potential expansion of low-key commercial development and increased residential density into adjoining streets which connect to the Town Centre and foreshore. It recommends that Dunsborough improves linkage with the foreshore by replacing low and intermittent activity with an area of interest and pedestrian amenity from the Town Centre.


 

City of Busselton Local Planning Strategy 2020

The LPS recommends the continued growth of the Dunsborough Urban Area through the redevelopment and consolidation of the existing urban area and identification of suitable areas for planned, progressive expansion. This objective to be achieved by urban consolidation and redevelopment (including increases in permissible residential density) in existing urban areas, especially in areas close to the Town Centre, high amenity areas, such as coastal locations, adjacent to open space, or areas close to significant community facilities.

Financial Implications

There are no financial implications associated with the officer recommendation.

Stakeholder Consultation

The Amendment was advertised for a period of 49 days ending 20 August 2021. During the advertising period it became apparent that direct written advice had not been sent to the 23 affected landowners. Each owner was contacted by telephone and email advising that the closing period for submissions would be extended by a further week.

A total of 114 submissions were received, from five government agencies and 96 different members of the public, including four affected landowners. Some members of the public provided two submissions of support, and 10 public submissions declared that they ‘did not support’ the proposal, however their comments indicated that they were in fact supportive. Each of these submitters was invited to clarify their views, and each provided a second submission, changing their view from ‘do not support’ to ‘support’.

One public submission was a clear objection, and there were no objections received from Government agencies.

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 not support the Amendment for final approval (and provide a reason for such a decision). The Council would need to make that as a recommendation to the Minister, setting out the rationale for the recommendation. The decision would then rest with the Minister, having also received and considered a recommendation on the amendment from the Western Australian Planning Commission.

2.         To make different or further modifications including, potentially, retaining the R80 coding over Lots 115 and 116 (26-28) Geographe Bay Road, and Lots 139 and 140 (23-25) Lorna Street, or retaining the R80 coding over the Lorna Street lots only, reflecting the amendment as advertised.


 

CONCLUSION

The Amendment concerns the potential future development of land along the Dunsborough foreshore, an iconic area of the South West and one that has merit for special design consideration. The coding of the land for R80 residential development in 2017, whilst reflecting broad strategic objectives, also placed reliance on LPS 21 and state residential development controls, and the use of specific design guidelines to guide future development. The recent approval of an apartment complex has demonstrated the potential impact of R80 coding, particularly in terms of height and bulk, in this sensitive foreshore location, and highlighted concerns about future development in this locality.

An R60 coding will continue to permit medium density development but will alleviate concerns about development exceeding three storeys. The Amendment proposal is not contrary to the strategic direction in state and local government policies and plans and reflects community concerns about the future development of this foreshore land, as it retains a medium density coding that will permit apartment and mixed-use development to occur, albeit at slightly lower density than is currently permissible. There is also the opportunity in future to provide more specific design guidance for the remaining lots in this locality and the townsite in the preparation of the PSP and further studies.

TIMELINE FOR IMPLEMENTATION OF OFFICER RECOMMENDATION

The implementation of the officer recommendation will involve the referral of Amendment No. 50 to the Western Australian Planning Commission for final approval and this will occur within one month of the resolution.


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Attachment a

Location Plan

 


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Attachment b

Aerial Photo

 


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Attachment c

Scheme Amendment Map

 


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Attachment d

Schedule of Submissions

 




















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Attachment e

Schedule of Modifications

 





Council                                                                                      190                                                             13 October 2021

13.2           AMENDMENT NO. 40 (MODIFICATIONS TO THE ZONING TABLE) - CONSIDERATION FOR FINAL ADOPTION

STRATEGIC THEME

OPPORTUNITY - A vibrant City with diverse opportunities and a prosperous economy.

STRATEGIC PRIORITY

3.2 Facilitate an innovative and diversified economy that supports local enterprise, business, investment and employment growth.

SUBJECT INDEX

Local Planning Schemes and Amendments

BUSINESS UNIT

Strategic Planning

REPORTING OFFICER

Senior Strategic Planner - Helen Foulds

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   Schedule of Modifications

Attachment b    Summary of Submissions

Attachment c    Busselton City Centre Retail and Commercial Analysis

Attachment d   Proposed Modifications to the Zoning Table  

 

OFFICER RECOMMENDATION

That the Council:

I.          In pursuance of the Planning and Development (Local Planning Schemes) Regulations 2015, adopts Amendment No. 40 to the City of Busselton Local Planning Scheme No.21 for final approval, in accordance with the modifications proposed in the ‘Schedule of Modifications’ shown at Attachment A, for the purposes of:

1.         Amending clause 3.5 “Exceptions to the Zoning Table” by:

a)        Inserting a new sub-clause 3.5.3(e) as follows:

(e)       other than with respect to a Lunch Bar or Service Station, the sale of the following goods or products by retail or wholesale to the public from land in the Service Commercial, Light Industry or General Industry zone:

(i)        foodstuffs, liquor or beverages;

(ii)       items of clothing or apparel;

(iii)     magazines, newspapers, books or paper products;

(iv)      medicinal or pharmaceutical products;

(v)       china, glassware or domestic hardware other than building supplies; or

(vi)      items of personal adornment;

unless such goods are manufactured on the lot;

b)        Deleting sub-clause 3.5.4(d);

c)         Deleting sub-clause 3.5.4(e); and

d)        Renumbering sub-clause 3.5.4(f) to 3.5.4(d);

2.         Amending Table 1 “Zoning Table” by, in relation to the use class ‘Bulky Goods Showroom’, replace the symbol ‘P’ with the symbol ‘D’ in the ‘Regional Centre’, ‘Centre’, ‘Local Centre’ and ‘Service Commercial’ zones;

 

 

3.         Amending Division 2 of Schedule 1 “Interpretations” by modifying the definition of ‘Bulky Goods Showroom’ to replace “or” between parts (a) and (b) with “and”;

4.         Amending Table 1 “Zoning Table” by –

a)        In relation to the use class ‘Aged Persons Home’, replace the symbol ‘A’ with the symbol ‘X’ in the ‘Rural’ zone;

b)        In relation to the use class ‘Amusement Parlour’, replace the symbol ‘D’ with the symbol ‘X’ in the ‘Service Commercial’, ‘Light Industry’ and ‘General Industry’ zones;

c)         Modifying the title ‘Ancillary Accommodation’ to read ‘Ancillary Dwelling’ and associated references throughout the Scheme accordingly;

d)        Inserting the use class ‘Art Gallery’ and allocating –

(i)        the symbol ‘D’ to the ‘Regional Centre’, ‘Centre’, ‘Local Centre’, ‘Tourism’, ‘Rural’ and ‘Viticulture and Tourism’ zones;

(ii)       the symbol ‘A’ to the ‘Rural Residential’ zone; and

(iii)     the symbol ‘X’ to the ‘Residential’, ‘Service Commercial’, ‘Light Industry’, ‘General Industry’, ‘Rural Landscape’, ‘Conservation’ and ‘Bushland Protection’ zones;

e)        In relation to the use class ‘Brewery’, replace the symbol ‘A’ with the symbol ‘X’ in the ‘Service Commercial’ zone;

f)         In relation to the use class ‘Bus Depot’, replace the symbol ‘D’ with the symbol ‘X’ in the ‘Rural’ zone;

g)        In relation to the use class ‘Cinema/Theatre’, replace the symbol ‘D’ with the symbol ‘X’ in the ‘Service Commercial’ zone;

h)        In relation to the use class ‘Convenience Store’, replace the symbol ‘D’ with the symbol ‘X’ in the ‘Service Commercial’, ‘Light Industry’ and ‘General Industry’ zones;

i)         In relation to the use class ‘Corner Shop’ –

(i)        replace the symbol ‘P’ with the symbol ‘X’ in the ‘Service Commercial’ zone; and

(ii)       replace the symbol ‘D’ with the symbol ‘X’ in the ‘Light Industry’ and ‘General Industry’ zones;

j)         In relation to the use class ‘Exhibition Centre’, replace the symbol ‘A’ with the symbol ‘X’ in the ‘Service Commercial’ zone;

k)        In relation to the use class ‘Fuel Depot’, replace the symbol ‘P’ with the symbol ‘D’ in the ‘Light Industry’ and ‘General Industry’ zones;

l)         In relation to the use class ‘Garden Centre’, replace the symbol ‘A’ with the symbol ‘X’ in the ‘Regional Centre’, ‘Centre’, ‘Local Centre’ and ‘Rural Residential’ zones;

m)       In relation to the use class ‘Hospital’, replace the symbol ‘A’ with the symbol ‘X’ in the ‘Rural Landscape’ zone;

n)        In relation to the use class ‘Hotel’, replace the symbol ‘A’ with the symbol ‘X’ in the ‘Service Commercial’ zone;

o)        In relation to the use class ‘Liquor Store – Large’, replace the symbol ‘P’ with the symbol ‘D’ in the ‘Regional Centre’, ‘Centre’ and ‘Local Centre’ zones;

 

p)        In relation to the use class ‘Liquor Store – Small’, replace the symbol ‘P’ with the symbol ‘D’ in the ‘Local Centre’ zone;

q)        In relation to the use class ‘Market’ –

(i)        replace the symbol ‘D’ with the symbol ‘X’ in the ‘Service Commercial’, ‘Light Industry’, ‘General Industry’, ‘Rural’ and ‘Viticulture and Tourism’ zones; and

(ii)       replace the symbol ‘A’ with the symbol ‘X’ in the ‘Rural Residential’ zone;

r)         In relation to the use class ‘Medical Centre’, replace the symbol ‘D’ with the symbol ‘X’ in the ‘Light Industry’ and ‘General Industry’ zones;

s)         In relation to the use class ‘Motel’, replace the symbol ‘A’ with the symbol ‘X’ in the ‘Service Commercial’ zone;

t)         In relation to the use class ‘Motor Vehicle, Boat or Caravan Sales’ –

(i)        replace the symbol ‘D’ with the symbol ‘X’ in the ‘Regional Centre’, ‘Centre’ and ‘Local Centre’ zones; and

(ii)       replace the symbol ‘P’ with the symbol ‘D’ in the ‘Service Commercial’, ‘Light Industry’ and ‘General Industry’ zones;

u)        In relation to the use class ‘Motor Vehicle Repair’, replace the symbol ‘P’ with the symbol ‘D’ in the ‘Light Industry’ zone;

v)        In relation to the use class ‘Reception Centre’, replace the symbol ‘D’ with the symbol ‘X’ in the ‘Service Commercial’ zone;

w)       In relation to the use class ‘Residential Building’, replace the symbol ‘X’ with the symbol ‘D’ in the ‘Regional Centre’ and ‘Centre’ zones;

x)        In relation to the use class ‘Restaurant/Café’, replace the symbol ‘D’ with the symbol ‘X’ in the ‘Service Commercial’ zone;

y)        In relation to the use class ‘Restricted Premises’, replace the symbol ‘D’ with the symbol ‘X’ in the ‘Service Commercial’ zone;

z)         In relation to the use class ‘Service Station’, replace the symbol ‘A’ with the symbol ‘X’ in the ‘Rural’ zone;

aa)      In relation to the use class ‘Small Bar’, replace the symbol ‘A’ with the symbol ‘X’ in the ‘Service Commercial’ and ‘Light Industry’ zones;

bb)     In relation to the use class ‘Takeaway Food Outlet’, replace the symbol ‘A’ with the symbol ‘D’ in the ‘Regional Centre’ and ‘Centre’ zones;

cc)       In relation to the use class ‘Tavern’, replace the symbol ‘A’ with the symbol ‘X’ in the ‘Service Commercial’ and ‘Light Industry’ zones;

dd)     In relation to the use class ‘Trade Supplies’ –

(i)        replace the symbol ‘P’ with the symbol ‘D’ in the ‘Regional Centre’, ‘Centre’, ‘Local Centre’ and ‘Service Commercial’ zones; and

(ii)       replace the symbol ‘X’ with the symbol ‘D’ in the ‘General Industry’ zone;

ee)     In relation to the use class ‘Veterinary Centre’, replace the symbol ‘P’ with the symbol ‘D’ in the ‘Service Commercial’ zone;

 

 

ff)       In relation to the use class ‘Winery’ –

(i)        replace the symbol ‘D’ with the symbol ‘A’ in the ‘Regional Centre’, ‘Centre’ and ‘Local Centre’ zones;

(ii)       replace the symbol ‘P’ with the symbol ‘D’ in the ‘Light Industry’ zone;

(iii)     replace the symbol ‘X’ with the symbol ‘D’ in the ‘General Industry’ zone; and

(iv)      replace the symbol ‘A’ with the symbol ‘X’ in the ‘Service Commercial’ and ‘Rural Landscape’ zones;

5.         Inserting new sub-clause 4.19 as follows, and renumbering subsequent clauses accordingly:

4.19    BREWERIES AND WINERIES

4.19.1 The development of a Brewery or a Winery within the Service Commercial, Light Industry and General Industry zones shall be primarily for the production, storage and/or distribution of the product.  The following restrictions shall apply –

(a)       consumption of the product at the site shall be limited to tastings only, being incidental to the production of the product on site, with maximum serving sizes of:

(i)        50mls for wine;

(ii)       100mls for beer/cider; and

(iii)     15mls for spirits;

(b)       no dining on the premises or the consumption or service of food shall take place;

(c)       patronage at the site shall not exceed 30 people at any one time; and

(d)       customers visiting the site for the purpose of tasting and/or sales are restricted to Monday to Sunday, including public holidays, between the hours of 12.00pm and 5.00pm.”

6.         Amending Additional Use No. 74 within Schedule 2 by inserting ‘Car Park’ within the list of land uses permitted.

II.         Advises the Western Australian Planning Commission that Amendment No. 40 is considered a ‘standard’ amendment pursuant to the Planning and Development (Local Planning Scheme) Regulations 2015 for the following reasons:

1.         An amendment relating to a zone or reserve that is consistent with the objectives identified in the Scheme for that zone or reserve;

2.         An amendment that is consistent with a local planning strategy for the Scheme that has been endorsed by the Commission; and

3.         An amendment that does not result in any significant environmental, social, economic or governance impacts on land in the Scheme area.

III.       Pursuant to r.53 of the Planning and Development (Local Planning Schemes) Regulations 2015, endorses the Summary of Submissions at Attachment B, which has been prepared in response to the public consultation process undertaken in relation to Amendment No. 40.

 

IV.       Upon preparation of the necessary documentation, refers the adopted Amendment No. 40 to the Western Australian Planning Commission for consideration and determination in accordance with the Planning and Development Act 2005.

V.        Pursuant to r.56 of the Planning and Development (Local Planning Schemes) Regulations 2015, should directions be given that modifications to Amendment No. 40 are required, direct these modifications to be undertaken accordingly, on behalf of the Council, unless they are considered by Officers likely to significantly affect the purpose and intent of the Amendment, in which case the matter shall be formally referred back to the Council for assessment and determination.

 

EXECUTIVE SUMMARY

The Council is requested to consider adopting for final approval Amendment No. 40 to Local Planning Scheme No. 21 (the Scheme). The purpose of Amendment 40 is to review the permissibilities within the Zoning Table of the Scheme, along with a limited number of associated modifications to the Scheme provisions.

 

The main intent of the Amendment is to protect the primacy of the Busselton City and Dunsborough Town Centres, supporting key objectives of the Local Planning Strategy, by reducing the risk of potential retail leakage from the corresponding ‘Regional Centre’ and ‘Centre’ zones. The key aim is to ensure those centres are able to retain their vibrancy, attract new investment, and continue to the social, cultural and economic hearts of our growing community. Doing so requires not just ensuring that existing commercial floorspace continues to be viable (even though individual businesses will change and evolve over time), but also ensuring that new investment occurs, so that the centres can grow with their communities.

 

To a lesser extent, Amendment 40 also considers and addresses a number of land uses within the rural zones for their suitability, and the potential creation of ad-hoc commercial development or strips along highways in rural areas. Such development would undermine the rural and natural landscape character of the District, which is so important to maintaining the identity and attractiveness of the District, for residents and visitors alike.

 

The proposed Amendment was advertised for public comment between 7 October and 18 November 2020. The City received 19 public submissions, 14 of which did not support the proposal, three raised concerns or provided comment and 2 supported the proposed Amendment. Some modifications to the proposed Amendment are being recommended in response to the key concerns raised. The key modifications relate to reducing the extent to which land-use in the Service Commercial Zone would be restricted, and ensuring that it is clear that ancillary and incidental activity will continue to be permissible, even in instances where that activity, as a stand-alone use, would not (e.g. a small café / coffee station within a larger showroom development).

 

The purpose of this report is to recommend to the Council that Amendment 40 be adopted for final approval, subject to recommended modifications, and forwarded to the Western Australian Planning Commission (WAPC) for consideration.

 


 

BACKGROUND

Purpose of the Amendment

The Western Australian Planning Commission (WAPC) gave final endorsement to the City of Busselton Local Planning Strategy (LPS) early in 2020. The LPS identifies a range of planning aims, objectives and strategies, particularly around ensuring consolidation of the main centres and ensuring the continuation of the centres as the social and economic hearts of our growing community. Achieving that requires changes to the City of Busselton Local Planning Scheme 21 (the Scheme), triggering a review of the Zoning Table to investigate current land use permissibilities and associated provisions.

 

Consideration was given to incorporating the proposed changes into the current Scheme Review process, as the City is working to the timely and effective preparation of, and smooth transition to, a new and replacement local planning scheme. However, it will be in the order of two or more years before the next Scheme is likely to be gazetted and become operational, and it is considered that the issues addressed in the Amendment need to be addressed more quickly.

 

As such, the matters contained herein are proposed to be dealt with more expeditiously, and as a targeted Amendment to the current Scheme.

 

Context

The local and regional tourism industry is of great importance to the City of Busselton, and to the State. Many visitors to the South West region choose to stay in Busselton and Dunsborough, establishing these centres as a base for exploring the wider region and surrounding attractions, and making the City of Busselton an important tourism destination for regional, interstate and international visitors.

 

Whilst there are many other attractors, both within our region and in many other places around Australia and around the world, an important and valuable part of the tourism experience is having vibrant, walkable, authentic town centre/main street or similar kinds of environments. Those environments also promote a strong sense of local community identity and social cohesion. A key part of the tourism experience is being to visit somewhere which looks and feels different to ‘home’. In that context, it is critical that the City of Busselton continues to have centres that have their own feel and character, and are authentic hearts of the community.

 

For the City of Busselton, that means ensuring that our urban and landscape character looks and feels different to Perth (which is the dominant tourism market), and where a very significant amount of the commercial development is in commercial strips, visible from major roads and highways, or in ‘shopping centres - car-dominated environments with little sense of place or local character. With rare exceptions, there has also been a failure to develop new town centre/main street or similar kinds of environments, or allow existing, more traditional centres to grow and consolidate. The same is, unfortunately, true in many of WA’s other regional centres.

 

The tourism industry within the South West region is worth more than $1.06 billion annually to the State’s economy. The Busselton Jetty and Foreshore Precinct have also benefitted from substantial State, Federal, City and private investment over the last decade. Development has included the reconstruction of the Busselton Jetty ($27M), the construction of coastal defences, award-winning playgrounds (including the skate park), as well as the Barnard Park Sports Precinct (with competition grade turf and new sport pavilion), together with a dedicated Youth and Community Activities Building, and Visitors Centre.

 


 

In total, there has been around $70M of public investment in the Foreshore Precinct. That investment has and will continue to leverage significant private investment. That includes the development of the ‘Shelter’ microbrewery (circa $4M), the current development of a 110 room, four star hotel (circa $20M), as well as two, further, potential hotel development sites.

 

Busselton has also been experiencing increasing cruise ship visitations in recent years, with a resultant boost to the local economy. Subject to resolution of COVID-19 related issues, it is expected that Busselton will continue to play a major role in attracting the cruise ship industry and passengers to WA in future.

 

The next major public investments are the proposed Busselton Performing Arts and Convention Centre (BPACC) and Australian Underwater Discovery Centre (AUDC). The BPACC is set to be a key project to attract and support WA, interstate and international tourism and investment. Approximately $38M may be invested in the construction of the BPACC. The BPACC, should development proceed, will further energise Busselton as a popular tourist, events and cultural centre, and play an important role in linking the Busselton Foreshore to the Busselton City Centre – consolidating the two precincts and creating a stronger economic cluster/agglomeration effect, to the benefit of both precincts and the broader economy. The AUDC, also a circa $30M investment, would be a major addition to the iconic Busselton Jetty, and would be Australia’s largest natural marine observatory, further enhancing the visitor experience at what is already one of Western Australia’s most popular tourist destinations.

 

Supporting the investment in the Busselton area is the upgrading of the existing Busselton Margaret River Airport, which is now capable of facilitating air services to interstate destinations including Melbourne and Sydney, and in future international destinations as far away as China. 

 

It is considered that the Jetty, Foreshore and City Centre need to form a coherent, integrated and activated, visitor, entertainment and retail precinct to optimise the economic and social benefits to the local and State economy, arising from the significant public and private investment that has occurred and is planned.

 

In combination, these projects not only establish high quality infrastructure and facilities for the benefit and enjoyment of our local community, but are also likely to further encourage and increase regional, interstate and international tourism. The Jetty/Foreshore precinct and Busselton generally are already one of the most highly visited areas state-wide and therefore are of great importance to the State’s tourism industry. These and related projects could be undesirably affected in future if there was vacant shop/retail floor space within the Busselton City Centre, and the opportunity to build on that investment would also be undermined if future investment does not occur in the City Centre – and instead occurs in the nearby service commercial and light industrial areas.

 

The Busselton City Centre Retail and Commercial Analysis (Urbis, 2020) was prepared to inform the preparation of an Activity Centre Plan. The analysis reviews floor space demand and supply and provides recommendations for revitalisation of the City Centre. A copy of this analysis is provided at Attachment C.

 

The Retail and Commercial Analysis found that the decentralisation of retail by the development of ‘shop’ retail outside the ‘Regional Centre’ zone was having a significant negative effect on the vitality and success of retail uses within the City Centre. A key recommendation of the Analysis is to support the primacy of the City Centre to ensure it retains its role as the highest order retail, entertainment, leisure and commercial precinct in the area. A further recommendation suggests the inclusion of criteria within the Scheme to better manage the leakage of ‘shop’ retail from the City Centre. This outcome strongly reflects the aims and objectives of the City of Busselton Local Planning Strategy (LPS).

 

At the time of the Analysis, 17 vacant shops were identified in the City Centre with some recognised dispersal to cheaper alternative premises, including within warehouse and industrial tenancies. This comes at the opportunity cost of development in the Busselton City Centre and further out-of-centre development will continue to affect the ability to fill vacancies and encourage further development of the City Centre as the primary centre. Without stronger controls, ‘leakage’ will accelerate, further eroding passing trade and general vitality.

 

The Retail and Commercial Analysis identifies a high level of visitation from people who live outside the City of Busselton. This includes international and domestic visitors (intrastate and interstate). This level of visitation from people outside the local catchment area is very high compared to other regional city centres (such as Bunbury and Geraldton) and indicates that the Busselton City Centre has a significant level of spending generated by tourists. Preventing retail leakage and strengthening Busselton as the main activity centre, though, is vital to linking the Foreshore to the City Centre and will serve to underpin the significant public and private investment in both areas. This in turn will support the valuable tourism industry.

 

The Proposal

Amendment No. 29, gazetted on 7 July 2019, sought to generally align the Scheme with the Model Provisions of the Regulations through alignment of the zones and land-use definitions. Also included within Amendment 29 was the incorporation of a number of standard provisions into the Scheme for the Busselton City and Dunsborough Town Centres, in order to provide guidance to development within the new ‘Regional Centre’ (Busselton) and ‘Centre’ (Dunsborough) zones.

 

Amendment No. 21 was considered by the WAPC and the Minister concurrently with Amendment 29 as it also proposed changes to a number of definitions, including ‘Shop’ and ‘Bulky Goods Showroom’, which applied to certain properties on West Street and Chapman Hill Road.

 

A small number of unintended and undesirable outcomes from Amendment 29 as a result of direction from the Minister has resulted in the need for further consideration of land use permissibilities within the Zoning Table. These outcomes were particularly due to definition changes required to align with the Model Provisions contained within the Regulations.

 

The purpose of Amendment 40 is to address identified ‘critical issues’ by closing certain ‘loopholes’ or inconsistencies in the Scheme’s Zoning Table, particularly looking at where land uses are currently permissible where they should not be, creating pressure on the Busselton and Dunsborough CBDs through potential retail and investment leakage to the ‘Service Commercial’ zone and, in some cases, the ‘Light Industry’ zone. The Amendment also considers quasi-industrial uses in rural areas, which can place unwelcome pressure on industry-zoned land and create ad-hoc commercial strips along major roads outside the urban centres.

 

In summary, Amendment 40 deals with two primary issues:

1.         ‘Shop’ / ‘Bulky Goods Showroom’ definitions; and

2.         Land Use Permissibilities / Zoning Table.

 

These issues are discussed in detail below.


 

1.  ‘Shop’ / ‘Bulky Goods Showroom’ definitions

The Issue

A review of all land use definitions was undertaken during the assessment process for Amendment No. 29. The City was satisfied that the then-current definition of ‘Showroom’ (being the previous land use title for ‘Bulky Goods Showroom’) sufficiently met the purpose and intent of the Scheme and the desirable objectives of the applicable zones. The previous definition of ‘Showroom’ was as follows:

‘Showroom’ means any building or part of a building used or intended for use for the purpose of displaying or offering for sale by wholesale or retail, automotive spare parts, carpets, large electrical appliances, furniture, hardware or bulky goods but does not include the sale by retail of foodstuffs, liquor or beverages, items of clothing or apparel, magazines, newspapers, books or paper products, china, glassware or domestic hardware, or items of personal adornment.

 

A definition for ‘Bulky Goods Showroom’ that was compliant with the Regulations was introduced through Amendment 21 as required by the Minister, along with a revised definition of ‘Shop’, and these have served to alter the way in which these land uses would normally be considered.

 

Previously, the definition for ‘Shop’ was very broad, and that for ‘Showroom’ was very specific. In effect, a use was considered to be a ‘Shop’ unless it was more specifically defined elsewhere in the Scheme.

 

This position has now effectively been reversed, with a very broad definition for ‘Bulky Goods Showroom’:

 

‘Bulky Goods Showroom’ means premises –

 

(a)       used to sell by retail any of the goods and accessories of the following types that are principally used for domestic purposes —

(i)        automotive parts and accessories;

(ii)       camping, outdoor and recreation goods;

(iii)      electric light fittings;

(iv)      animal supplies including equestrian and pet goods;

(v)       floor and window coverings;

(vi)      furniture, bedding, furnishings, fabrics, manchester and homewares;

(vii)     household appliances, electrical goods and home entertainment goods;

(viii)    party supplies;

(ix)      office equipment and supplies;

(x)       babies’ and children’s goods, including play equipment and accessories;

(xi)      sporting, cycling, leisure, fitness goods and accessories;

(xii)     swimming pools;

or

(b)       used to sell by retail goods and accessories by retail if —

(i)        a large area is required for the handling, display or storage of the goods; or

(ii)       vehicular access is required to the premises for the purpose of collection of purchased goods.

 


 

Meanwhile, the definition for ‘Shop’ has been substantially narrowed:

 

‘Shop’ means premises other than a bulky goods showroom, a liquor store – large or a liquor store – small used to sell goods by retail, to hire goods, or to provide services of a personal nature, including hairdressing or beauty therapy services.

 

The City considers there to be multiple issues associated with the current definition of ‘Bulky Goods Showroom’:

·        The current wording provides for a broad definition, using ambiguous terms such as “recreation goods”, “home entertainment goods”, “office equipment and supplies”, “children’s goods” and “accessories”, and does not explicitly require goods to be of a necessarily bulky nature.

·        The presence of the “or” instead of an “and” between parts (a) and (b) of the definition separates the definition into two parts creating, in the City’s opinion, a level of uncertainty in interpretation. The sale of goods found in part (a) are no longer required to be housed in a large area as required by part (b). Conversely, a premises does not need to include any of the items listed in part (a) but may require a large area for display and sale; meaning a supermarket, or any other large shop, arguably fits this definition regardless of whether it sells bulky goods.

·        Due to the words “‘Shop’ means premises other than a bulky goods showroom…” a retail use would first need to be determined as to whether it fits into the definition for ‘Bulky Goods Showroom’. Some examples of businesses that would previously have been considered as constituting a ‘Shop’ but now could arguably be considered as a ‘Bulky Goods Showroom’ include:

o   a newsagent (under part (a)(ix), “office supplies”);

o   a children’s clothing store (under part (a)(x), “children’s goods”); and

o   sports clothing and shoe store (under part (a)(xi), “sporting, cycling, leisure, fitness goods and accessories”).

·        The land use permissibility for ‘Bulky Goods Showroom’ was not modified through Amendment 21 and so was retained as a ‘P’ use (permitted) in the ‘Service Commercial’ zone and a ‘D’ use (discretionary) within the ‘Light Industry’ zone. This provides a potential gateway for inappropriate retail within the ‘Service Commercial’ and ‘Light Industry’ zones.

 

The LPS places strong emphasis on preventing retail activity, including bulky goods retail, from being located in industrial and service commercial areas. This position has been supported by the Retail and Commercial Analysis (provided at Attachment C). The alternative, and what has been experienced already to some degree, unfortunately, is the dispersal of retail businesses and investment out of the City Centre.

 

As mentioned earlier within this report, the local and regional tourism industry is of great importance to Busselton and the State. Tourists do not visit the area to drive around a car-dominated service commercial area. Instead, vibrant, pedestrian-focused, authentic town centre/main street environments are an important part of the visitor experience – as well as promoting a strong sense of local community identity and social cohesion.

 


 

Importantly, the tourism industry is a significant source of employment within both Busselton and the South West region. The complexities surrounding certain land use definitions and permissibilities mentioned previously are considered likely to have a very real impact on the tourism experience by potentially depleting the activity and vibrancy of our main centres. The Retail and Commercial Analysis identifies the significance of enhancing the tourism experience within the City Centre, enriching a sense of enjoyment, engagement and connectivity, and encouraging ongoing investment and holiday spending within the Centre.

 

Proposed Approach

In relation to the ‘Bulky Goods Showroom’ land use, proposed Amendment 40 was advertised with a three-pronged approach to correcting the anomalies currently present within the Scheme:

 

1.         Amend the permissibilities for such land uses from ‘P’ to ‘D’ in the ‘Service Commercial’, ‘Regional Centre’ and ‘Centre’ zones, thereby requiring a Development Approval process to change the use of a building or premises to that use.

 

2.         Amend clause 3.5 “Exceptions to the Zoning Table” by deleting sub-clauses 3.5.4(d) and (e) and replacing them with a new sub-clause inserted into clause 3.5.3 specifying that the sale of the following goods or products will be deemed an ‘X’ use in the ‘Service Commercial’, ‘Light Industry’ or ‘General Industry’ zones:

(i)        foodstuffs, liquor or beverages;

(ii)       items of clothing or apparel;

(iii)      magazines, newspapers, books or paper products;

(iv)      medicinal or pharmaceutical products;

(v)       china, glassware or domestic hardware other than building supplies; or

(vi)      items of personal adornment;

 

unless such goods are manufactured on the lot.

 

3.         Amend the definition for ‘Bulky Goods Showroom’ by changing the “or” between parts (a) and (b) to “and”, thereby creating a clear and meaningful link between the two parts of the definition to remove uncertainty and better address issues such as those mentioned previously.

 

Proposals 1 and 3, above, are discussed in the previous section in relation to the concerns held with the ‘Bulky Goods Showroom’ definition.

 

With regard to item 2 above, the existing sub-clauses 3.5.4(d) and (e) are inconsistent with the general intent and strategic direction set out in the LPS. Sub-clause 3.5.4(d), reproduced below, is proposed to be deleted, as it is problematic and often unworkable in terms of the development assessment process due to its non-specific nature and the difficulty in quantifying the impact of such a use on either the “nearby business centre” or the “industrial nature of the zone”. Furthermore, the ‘Bulky Goods Showroom’ use is already a ‘D’ use in the ‘Light Industry’ zone and not permitted in the ‘General Industry’ zone.

 


 

The existing clause 3.5.4(d) states:

 

3.5.4   Notwithstanding the provisions of clause 3.3 and Table 1, the following development shall be deemed a “D” use –

...

(d)      development for the purposes of commercial premises for the retailing of bulky goods in the Light Industry or General Industry zones, subject to the local government being satisfied that -

(i)        suitable land for the development is not available in any nearby business centre;

(ii)       the development would not, by reason of the number of retail outlets which exist or are proposed on land within the Light Industry or General Industry zone, defeat the predominantly industrial nature of the zone; and

(iii)      the proposed development will not detrimentally affect the viability of any business centre.

 

In order to resolve the concern that the ‘Bulky Goods Showroom’ definition could unnecessarily draw essential retail uses and activities away from the Centres, and also so as not to conflict with the ‘Trade Supplies’ definition, sub-clause 3.5.4(e) (shown below) is proposed to be modified and inserted into clause 3.5.3, which specifies uses that shall be deemed an ‘X’ use.

 

The existing sub-clause 3.5.4(e) states:

 

3.5.4   Notwithstanding the provisions of clause 3.3 and Table 1, the following development shall be deemed a “D” use –

...

(e)       excluding reference to a convenience store or lunch bar, the sale of goods or products by retail or wholesale to the public from land in the Light Industry or General Industry zone, provided that –

(i)        the goods or produce are manufactured or stored in bulk on the lot;

(ii)       not more than 50% of the gross floor area of building on the lot is used for the sale of such goods or produce; and

(iii)      the goods or produce sold are not –

(I)        foodstuffs, liquor or beverages;

(II)       items of clothing or apparel;

(III)     magazines, newspapers, books or paper products;

(IV)     medicinal or pharmaceutical products;

(V)      china, glassware or domestic hardware other than building supplies; or

(VI)     items of personal adornment;

 

unless such goods are manufactured on the lot;

 

The proposed modification to the sub-clause seeks to ensure the sale of these inappropriate goods (listed from ‘I’ to ‘VI’ above) will be excluded from the specific zones, ‘Light Industry’ and ‘General Industry’, with the addition of the ‘Service Commercial’ zone. Parts (i) and (ii) of the sub-clause are not proposed to be replicated as they could potentially cause conflict with the definition of ‘Trade Supplies’, which already provides a reasonably specific definition for development that is acceptable to be located in those zones. However, given that ‘Convenience Store’ is proposed to become an ‘X’ use in the ‘Service Commercial’ and industrial zones, it should be removed from the sub-clause. ‘Service Station’ remains as a ‘D’ use in these zones and so should be included with ‘Lunch Bar’.

 

The proposed modification reads as follows:

 

3.5.3   Notwithstanding the provisions of clause 3.3 and Table 1, the following development shall be deemed an “X” use –

...

(e)       other than with respect to a Lunch Bar or Service Station, the sale of the following goods or products by retail or wholesale to the public from land in the Service Commercial, Light Industry or General Industry zone:

(i)        foodstuffs, liquor or beverages;

(ii)       items of clothing or apparel;

(iii)      magazines, newspapers, books or paper products;

(iv)      medicinal or pharmaceutical products;

(v)       china, glassware or domestic hardware other than building supplies; or

(vi)      items of personal adornment;

 

unless such goods are manufactured on the lot.

 

This combination of modifying permissibilities, introducing a slight modification to the definition, and varying the relevant provisions within Part 3 of the Scheme, as discussed above, were considered to satisfactorily resolve the main concerns held by the City in relation to potential retail leakage from the main centres. These proposals can be found within the Officer Recommendation at sections 1, 2 and 3.

 

2.  Land Use Permissibilities / Zoning Table

The Zoning Table was reviewed by the City with a focus on aligning the land use permissibilities with the objectives for the zones and the strategic directions of the LPS, such as maintaining the primacy and activity of the City and Town Centres. Some land use definitions were changed in order to be consistent with the Regulations as a directive from the Minister (for example, ‘Bulky Goods Showroom’, as described in the previous section), and are considered to carry potential risks to the primacy of the City and Town Centre in the absence of any timely review of the Zoning Table.

 

This review focussed on what were considered to be the most critical issues, such as modifications that should be introduced as soon as possible, rather than awaiting the full Scheme Review.

 

With the above matters in mind, the critical issues are considered to be:

·        Consolidation of activity within the Busselton City and Dunsborough Town Centres, as well as avoiding retail leakage from the Centres, particularly into the ‘Service Commercial’ zone and, to a lesser extent, into the ‘Light Industry’ zone;

·        Permissible uses where a development application should instead be required and assessed; and

·        Quasi-industrial land uses in rural areas, causing leakage from the Industrial zones.

 

A table identifying a full list of the proposed changes for each land use, with justification provided, is shown at Attachment D, with the recommendations provided at sections 4, 5 and 6 of the Officer Recommendation.

 


 

In relation to the symbols used within the Zoning Table:

·        ‘P’ is a permitted use provided the use complies with the relevant development standards;

·        ‘D’ means the use is permitted if the local government has exercised its discretion by granting planning approval;

·        ‘A’ means the use is permitted if the local government has exercised its discretion by granting planning approval following public consultation; and

·        ‘X’ means the use is not permitted within that zone.

 

Discussion on some of the key changes are provided in greater detail below.

 

Aged Persons Home

‘Aged Persons Home’ is proposed to become an ‘X’ use (from an ‘A’ use) in the ‘Rural’ zone given the generally poorer levels of accessibility to services, infrastructure (e.g. dual use paths) and public transport in the rural areas, thus increasing reliance on vehicles. Often the residents of this land use have an increased reliance on such services and facilities and yet may have less of an ability to drive themselves. The proposal aims to factor in the appropriate location of this use with better access to associated services and facilities, in accordance with Theme 1, Strategy ‘h’ of the LPS.

 

Breweries and Wineries in the Industrial zones

The preferred location for a ‘Brewery’ and a ‘Winery’ is generally within the ‘Light Industry’ and ‘General Industry’ zones, provided these uses are predominately for the production, storage and distribution of the manufactured product. This is because these zones are usually located in areas with ready connection to services and utilities enabling the disposal of wastewater in an appropriate manner. These zones are also normally situated with appropriate separation distances to sensitive land uses.

 

In more recent times, an increase in the production of craft beer and the development of cellar door facilities has heightened the popularity of tasting facilities as tourist destinations and places of social interaction, resulting in a split of two predominant practices for both land uses – (1) production and (2) tourism/tastings/sales.

 

The latter has a tendency to place pressure on the scale of the development as business owners seek to cater for a growing number of customers by increasing floor areas, and often also seeking to provide commercial kitchens for the preparation and delivery of meals in association with these tastings.

 

The popularity of these businesses contributes to the economic vitality of the region, providing attractive venues for both tourists and locals alike. However, conflict can arise where these are not appropriately located. Increasing pressure for the provision of meals, with no restrictions to tasting sizes, results in the perception of these facilities as a ‘Tavern’ and/or a ‘Restaurant/Café’, being uses which are not appropriate to be located within the ‘Service Commercial’, ‘Light Industry’ and ‘General Industry’ zones.

 

The appropriate location of such commercial activity is within the City and Town Centres where walkability and an ability to activate the Centres beyond standard business hours contributes to increased vitality and patronage. Given the success of the ‘Margaret River Wine Region’, tourist-related uses also tend to be located within the ‘Rural’ and ‘Viticulture and Tourism’ zones. However, the ‘Rural’ and ‘Viticulture and Tourism’ zones do not tend to have access to services needed for the ‘production’ component of the business.

 

‘Restaurant/Café’, ‘Tavern’ and ‘Reception Centre’ are not uses typically associated with the Industrial zones, the Scheme objectives for which include providing for industrial, service and storage activities that generally cannot be located in other zones. Industrial-zoned land should be preserved primarily for that important purpose, whilst the introduction of more sensitive, amenity-based uses such as a ‘Tavern’ (for example) has the potential to compromise, or restrict, surrounding industrial land uses, contrary to the core purpose and intention of the zone.

 

The definition of ‘Brewery’ within the Scheme is for premises the subject of a Producer’s Licence under the Liquor Control Act 1988 and can include the manufacturing of beer, cider and/or spirits. Beer must have been brewed on the premises and generally the licence authorises the sale/supply of take-away liquor for consumption off the premises. The Liquor Control Act allows for tastings, subject to the provision of toilet facilities, and the licensee is authorised to sell/supply liquor, other than that liquor produced by the licensee, if the liquor is consumed ancillary to a meal in a dedicated dining area in the same premises (delivered at a table, or a fixed structure used as a table, with cutlery provided for the purpose of eating a meal).

 

A Producer's Licence generally restricts the vessel size in which alcohol can be served, although the Department of Racing, Gaming and Liquor (DRGL) has been known to allow an increase in tasting sizes if supported by the local government.

 

In these instances, tastings should be incidental to the production of the beer or wine (etc.) and therefore the hours of operation (for tasting and sales) should be limited and defined to ensure this. Concern that the use could be developed into a pseudo-‘Restaurant’, ‘Tavern’ or ‘Reception Centre’, where none of those uses are either currently permissible within the ‘Service Commercial’, ‘Light Industry’ and ‘General Industry’ zones, or are proposed to be made not-permissible through this Amendment 40, has been a leading factor in that (‘tastings’) use being deemed inappropriate and contrary to the objectives of those zones.

 

To ensure the Brewery or Winery facility operates in accordance with its stated intent and predominant use (being production), a number of restrictions are also proposed to be included within the relevant provision to ensure the use of the said facilities meet the objectives of the zones. These restrictions are proposed to include for the ‘Light Industry’ and ‘General Industry’ zones:

·        The size of the tastings – the measurements prescribed by the Liquor Control Regulations 1988 for ‘sample quantities’ has been assumed, being 50 ml for wine, 100 ml for beer/cider, and 15 ml for spirits.

·        No consumption or service of food – the provision of a meal quickly overtakes the original intention of the tastings as being incidental to the production of the liquor. It is not the intention of a Producer’s Licence to facilitate a ‘pseudo-restaurant’, with in-house dining facilities being considered inappropriate in the subject zones.

·        The number of patrons – it is recommended that maximum patronage is limited to 30 people at any one time, being the equivalent of one coaster bus, plus one or two groups of “walk-ins”.

·        Hours of operation – to ensure the tasting facility operates as intended (an incidental use) and not as a makeshift tavern, a restriction on the number of customers visiting the site for the purpose of tasting and/or sales is proposed to be limited to between the hours of 12.00pm and 5.00pm Monday to Sunday, including public holidays.

 


 

Modifications to the Zoning Table have been proposed in the expectation that the proposed provision will be implemented into the Scheme, thereby better guiding and controlling the appropriate location of production facilities. The permissibilities for the ‘Brewery’ and ‘Winery’ land uses are being brought into closer relation with each other given the similarity of the main issues and considerations associated with them. The changes proposed in relation to these uses are as follows:

 

Zone/Use Class

Res

Reg

Ctr

Ctr

Loc

Ctr

Serv Com

Tour

L/

Ind

G/

Ind

Rural

Vit/

Tour

Rural

Res

Rural Lsp

Cons

Bush

Prtn

Brewery

X

A

A

A

A X

A

D

D

A

A

X

X

X

X

Winery

X

D A

D A

D A

D X

A

P D

X D

D

D

X

A X

X

X

 

Both ‘Brewery’ and ‘Winery’ land uses are proposed to become prohibited within the ‘Service Commercial’ zone, given the recommended buffer distances identified by the Environmental Protection Authority in the ‘Separation Distances between Industrial and Sensitive Land Uses’ guidelines of 200 – 500 metres. This is due to the potential adverse impacts caused by odour, gases, noise and dust. This buffer distance would effectively rule out any ‘Service Commercial’ zoned site being used, given the relatively small areas of land covered by this zone and their generally close proximity to residential areas.

 

The tourism component of these particular uses would be more appropriately located within the ‘Centre’ zones, and it is proposed to bring the permissibilities for a ‘Winery’ land use into closer certainty with a ‘Brewery’ land use.

 

The proposed modification to ‘Winery’ permissibilities in the industrial zones, and the retention of the ‘D’ use for ‘Brewery’ within these zones, is based on an appropriate provision for the restriction of tastings and food service (etc.) being inserted into the Scheme.

 

Finally, ‘Winery’ is proposed to become an ‘X’ use within ‘Rural Landscape’ zone, aligning with ‘Brewery’, due to the more sensitive nature of such locations and the need to preserve and protect the integrity of the zone.

 

These proposals specific to Breweries and Wineries are listed at section 4e), 4ff) and 5 of the Officer Recommendation.

 

Car Park

A ‘Car Park’ is currently a ‘D’ use within the ‘Regional Centre’ and ‘Centre’ zones. The ideal locations for this land use are on the outer edges of the Centres, in order to encourage, pedestrian focused development within core commercial/retail areas that contributes to a vibrant City and Town Centre, thereby aligning with the objectives of the LPS while also providing improved development options within the central sites themselves. This is particularly the case in Dunsborough (‘Centre’ zone) where there is less available land for development/re-development.

 

The Additional Use ‘A74’ was created through Amendment No. 1 (gazetted 4 August 2017), which allows for a small number of low impact commercial uses within a limited and defined area of ‘Residential’ zoned land adjoining the Busselton City and Dunsborough Town Centre. The uses already included within ‘A74’ are ‘Office’, ‘Guesthouse’, ‘Medical Centre’, ‘Consulting Rooms’, ‘Restaurant/Café’, ‘Shop’ and ‘Tourist Accommodation’, all of which are ‘discretionary’. Amendment 40 proposes to include ‘Car Park’ into this list of additional uses, thereby requiring the consideration of a development application to ensure appropriate design outcomes and control of potential amenity impacts on surrounding properties.

 


 

Hospital

A ‘Hospital’ is considered to be a ‘vulnerable’ land use under the bushfire planning framework. Given that the small number of ‘Rural Landscape’ zoned lots are all located within ‘Bushfire Prone Areas’ and are therefore unlikely to comply with the bushfire safety requirements for a ‘vulnerable’ land use, a ‘Hospital’ is not considered to be an appropriate land use within this zone.

 

Market

The definition of ‘Market’, as a “premises used for the display and sale of goods from stalls by independent vendors”, has been particularly problematic in recent times, with difficulty in distinguishing that use from a ‘Shop’ use. Being essentially a retail use, ‘Market’ is proposed to be removed from zones such as the ‘Service Commercial’ zone, and industrial and rural zones, all of which would not normally allow for shop retail uses in any event.  

 

Medical Centre

‘Medical Centre’ is proposed to change from a ‘D’ use to an ‘X’ use within the ‘Light Industry’ and ‘General Industry’ zones as this land use is not consistent with the underlying objectives of these zones. This land use would be better located within or close to main centres, where better access to complementary uses (e.g. pharmacies) and public transport is available.

 

Service Station

The ‘Service Station’ land use is a typical contributor to ‘ribbon development’ along major travel routes and is generally contrary to the recommendations of the LPS and the provisions of the Scheme when located in rural areas. Should a ‘Service Station’ be deemed a necessary land use in a particular location for strategic reasons, a targeted Scheme Amendment could be undertaken to enable a merits-based assessment for that land use on that particular site. There has been recent concern about development of new service stations in the City, and this change would provide greater control over this land use along highways in rural areas.

 

Miscellaneous

Other miscellaneous proposed changes worth highlighting are:

 

·        A number of land uses typically have a social element and therefore should be focused within the main centres in order to encourage pedestrian visitation, associated spend and an active contribution to the overall viability and vitality of the CBDs. Any potential for such land uses to be situated within the ‘Service Commercial’ or ‘Industrial’ zones is proposed to be removed from the Scheme as they are contrary to the aims and objectives of these zones and the recommendations of the LPS. 

 

These uses include: 

§  ‘Amusement Parlour’;

§  ‘Cinema/Theatre’;

§  ‘Exhibition Centre’;

§  ‘Hotel’;

§  ‘Reception Centre’;

§  ‘Restaurant/Café’;

§  ‘Small Bar’; and

§  ‘Tavern’.

 

 

·        Review of a certain land uses to ensure that appropriate levels of permissibility are in place, especially where their location may have the potential to cause nuisance to nearby residential dwellings and workplaces. These uses may typically be located within the ‘Service Commercial’ zone and/or industrial zones and, while there is no suggestion that they should not be located within these zones, their proximity to residential areas must be taken into reasonable account. Such uses include:

§  ‘Garden Centre’;

§  ‘Motor Vehicle, Boat or Caravan Sales’;

§  ‘Motor Vehicle Repair’; and

§  ‘Veterinary Centre’. 

OFFICER COMMENT

The most relevant and substantive issues raised during the public consultation process can be addressed under the following headings:

1.         Definition of ‘Bulky Goods Showroom’ land use

2.         Permissibility of ‘Bulky Goods Showroom’ land use

3.         Prohibiting sale of certain items (cl. 3.5.3(e))

4.         Incidental uses and activities

5.         “Domestic hardware”

6.         Prohibiting land uses

7.         Chapman Hill Road Industrial/Service Commercial and Enterprise Park (Dunsborough)

8.         Miscellaneous modifications

9.         Retail and economics data

 

1.            Definition of ‘Bulky Goods Showroom’ land use

The primary reason for Amendment 40 is to address the potential leakage of shop/retail and other high intensity land uses, and future investment, away from designated Activity Centres, particularly the Busselton City Centre. A component of this issue is the concerns held by the City with the ‘Bulky Goods Showroom’ definition. The current definition is very broad and uncertain in terms of what types of business activity falls within this definition, and what activity falls within other uses, especially ‘Shop’. Officers are of the strong view that the current definition could allow shop/retail operators to argue they should be allowed in the ‘Service Commercial’ zone due to the need for large showroom areas and vehicle access to receive goods.

 

This situation creates very significant risk of introducing activity that should be in an Activity Centre into zones that should be set aside for other purposes, and critically undermines the direction set out in the City’s (recently) WAPC endorsed LPS. The outcome potentially caused by the current definition is also not aligned with draft SPP 4.2 that identifies shop/retail uses as those that should be located within Activity Centres. The proposed change to the definition by substituting the “or” with “and” between parts (a) and (b) is considered critical to avoid this issue.

 

The Amendment No. 40 is striving to better align the Scheme with the expectations of the LPS and to ensure development adheres to the State Planning Framework (including draft SPP4.2) by reducing out of centre development, protecting the primacy of activity centres and protecting land that is appropriate for Bulky Goods Showroom uses from being taken up by shop/retail uses.

 

Officers reinforce the importance of the proposed change to the ‘Bulky Goods Showroom’ definition to create the clear and meaningful link between the two parts of the definition as initiated by the Council.

 

2.            Permissibility of ‘Bulky Goods Showroom’ land use

The Amendment proposes to modify the permissibility of this use from ‘P’ (permitted) to ‘D’ (discretionary) in the Centre zones and the ‘Service Commercial’ zone.

 

It should be made clear that the most appropriate location for genuine ‘Bulky Goods Showroom’ land uses is on the periphery of, or adjacent to, Activity Centres. In that respect, land in the ‘Service Commercial’ zone should be protected for land uses that are appropriately classified as ‘Bulky Goods Showroom’, and not shop/retail that would be better located within the Activity Centre. With this in mind, and subject to the definition for ‘Bulky Goods Showroom’ being amended (as discussed in the section above), requiring a Development Application to ensure the use was suitable for the ‘Service Commercial’ zone should not be necessary.

 

Therefore, following further consideration after the closure of the submission period, Officers recommend that the permissibility of this use within the ‘Regional Centre’, ‘Centre’ and ‘Service Commercial’ zones retain the designated ‘P’ permissibility. This recommendation is provided in the Schedule of Modifications at Attachment A (item no. 4).

 

However, as the ‘Local Centres’ tend to be smaller in area and in close proximity to residential zoned land, full consideration of the appropriateness of the use should be considered, particularly in relation to impacts off site. The proposed change of the permissibility to ‘D’ in this zone, as advertised, is therefore recommended.

 

3.            Prohibiting sale of certain items (cl. 3.5.3(e))

With regard to the restriction of sales of certain products, proposed sub-clause 3.5.3(e) is recommended to be altered to remove reference to the ‘Service Commercial’ zone (listed as item no. 1 in Attachment A, Schedule of Modifications). This will reflect the existing clause 3.5.4(e)(iii) (which the proposed clause seeks to replace), in that it only refers to the ‘Light Industry’ and ‘General Industry’ zones. This recommended modification will reduce the proposed restrictions on the ‘Service Commercial’ zone, being located on the periphery of the Busselton City Centre and the recommended location for bulky goods/large format retail as identified by the draft SPP 4.2 Implementation Guidelines. The industrial areas are not the recommended location for shop/retail sales, as discussed at comment no. 1, above.

 

As with the above discussion regarding permissibilities of ‘Bulky Goods Showroom’ uses, this recommended modification is dependent on the change to the definition being supported.

 

Summary of recommended modifications related to ‘Bulky Goods Showroom’ land use

 

Draft Amendment as advertised

Proposed Modification

1

Permissibilities for Bulky Goods Showroom from ‘P’ to ‘D’ in the ‘Service Commercial’, ‘Regional Centre’ and ‘Centre’ zones

Recommend remove change of permissibility for Bulky Goods Showroom such that the only change as a result of the Amendment is to the ‘Local Centre’ zone (from ‘P’ to ‘D’).

2

Modify provision to prohibit sale of certain items within the ‘Service Commercial’, ‘Light Industry’ and ‘General Industry’ zones (clause 3.5.3(e))

Remove ‘Service Commercial’ from the clause so that the clause only applies to the ‘Light Industry’ and ‘General Industry’ zones, consistent with existing clause 3.5.4(e)(iii).

3

Amend the Bulky Goods Showroom definition by replacing the “or” with an “and”

No proposed change

 

If the WAPC does not accept the proposed modification to the ‘Bulky Goods Showroom’ definition, Officers would recommend the Council seek the use to be prohibited within the ‘Light Industry’ zone and a ‘D’ use in the ‘Service Commercial’ zone, as well as the zone ‘Service Commercial’ being reinstated into the proposed clause 3.5.3(e).

 

4.            Incidental uses and activities

Consideration has been given to whether proposed clause 3.5.3(e) should refer to the sale of products that are incidental to the main use. Several submissions received expressed concern that it is not explicit in the proposed clause that the prohibition would only apply where the main purpose of the activity is to sell those items listed in the clause.

 

It was initially considered this would be unnecessary as clause 3.3.3 exists in the Scheme –

 

3.3.3   A reference to a use that may be carried out only with development approval includes a reference to any use ordinarily ancillary, subsidiary or incidental to the predominant use for which approval is sought.

 

However, the beginning of clause 3.5.3 uses the words “notwithstanding the provisions of clause 3.3 and Table 1”. These words are used to make clear which of two provisions is to prevail in the event of a conflict between those provisions. The use of those words could operate to exclude existing clause 3.3.3, provided above.

 

The City takes and expects to continue to take a fairly pragmatic approach towards incidental uses and activities, and it is seen as important to find ways to avoid losing reasonable flexibility. Therefore, in order to improve clarity for proponents, decision makers and tribunals, officers recommend that the following words are included at the end of the proposed clause:

 

                “...or are ordinarily ancillary, subsidiary or incidental to the predominant use.”

 

This recommendation is provided for within the Schedule of Modifications at Attachment A (item no. 3).

 

Consideration will need to be given as to how incidental uses will be dealt with during preparation of the new Local Planning Scheme No. 22 to ensure this flexibility is not lost.

 

5.            “Domestic hardware”

There has been some misunderstanding within several submissions in relation to the term “domestic hardware”, which is listed within proposed clause 3.5.3(e). This does not include hammers, tools and the like, in fact the existing clause 3.5.4(e) and proposed clause 3.5.3(e) both state “domestic hardware other than building supplies”. 

 

The term “domestic hardware” appears first within District Town Planning Scheme No. 20, which was gazetted in September 1999. The Australian and New Zealand Standard Industrial Classification 1993 (ANZSIC) classified ‘Domestic Hardware and Houseware Retailing’ as those businesses that were engaged in retailing household items such as crockery, cutlery, cooking utensils, glassware and other general kitchenware items. The ANZSIC now identifies the retail sale of these items as ‘Houseware Retailing’ and consists of businesses mainly engaged in retailing kitchenware, china, glassware, silverware or other houseware goods. These are clearly the products that the original clause was targeting, given it was listed alongside china and glassware.

 

It is recommended that the term “domestic hardware” be updated to reflect the current reference of “houseware retailing” to avoid confusion and is therefore included in the Schedule of Modifications at Attachment A (item no. 2).

 

6.            Prohibiting land uses

A number of submissions objected to the proposed downgrading of permissibilities to some uses, particularly in the ‘Service Commercial’ zone, and to a smaller extent, in the ‘Light Industry’ zone. Reasons for this objection cited the role of these uses in providing amenities for local workers and the detrimental impact on establishing new businesses in the area.

 

These uses that are proposed by Amendment 40 to become prohibited in these zones are identified as Activity Centre uses under draft SPP4.2 and are generally identified as not suited to either ‘Service Commercial’ or ‘Light Industrial’ areas. SPP4.2 (2010) states that commercial uses in industrial areas should be limited to meeting the core local convenience needs of workers. The Scheme allows for ‘Lunch Bars’ and ‘Service Stations’ in these zones, with the addition of ‘Takeaway Food Outlets’ in the ‘Service Commercial’ zone, and no change is proposed by the Amendment. These uses are allowed to sell food and beverage items, providing for the daily needs of workers and visitors to the respective areas.

 

The range of uses targeted by the Amendment are all identified as Activity Centre uses by the draft SPP4.2, grouped as ‘Retail development’, ‘Entertainment, Education and Leisure facilities’, ‘Commercial uses’ and ‘Cultural/Tourism uses’. These uses are not required to address the daily needs of workers and visitors during working hours as would be appropriate for Service Commercial or Industrial areas. Both the Busselton and Vasse Light Industrial Areas, as well as the Busselton ‘Service Commercial’ area, are within relative close proximity to the respective Activity Centres to enable workers to make use of those particular amenities.

 

The principles set out in the WAPC’s Activity Centres State Planning Policy 4.2 do not support these uses outside Regional Centre, District Centre and Centre zones where they can activate streets after hours, maintain investment and infrastructure in existing centres and avoid ‘out of centre’ development that would undermine the primacy and retail sustainability of the central Activity Centre areas and trade catchments.

 

Some of the uses that are proposed to have downgraded permissibilities are important components of developing a strong night-time economy. Allowing night-time uses such as restaurants, taverns and small bars to locate in the ‘Service Commercial’ and ‘Light Industry’ areas would be at the cost of having night-time uses in the City Centre and would limit the ability for the Busselton City Centre to attract and foster its own vibrant night-time economy. The uses should be clustered in order to function effectively. If these uses are spread, or develop ‘out of centre’, it would undermine that objective. 

 

It is essential that developable land in ‘Service Commercial’ areas be protected to provide for ‘Bulky Goods Showroom’ and other more suitable uses. Draft SPP4.2 states that “the preferred location of bulky goods/large format retail is in precincts on the periphery of activity centres and the regional road and public transport networks”, which aligns with the ‘Service Commercial’ zone provided along West Street and Bussell Highway.

 

For these reasons, there is no recommended modification to the Amendment in this regard.


 

7.            Chapman Hill Road Industrial/Service Commercial and Enterprise Park (Dunsborough)

Two areas were identified in submissions as being exempt from the proposed changes as they are not specifically zoned ‘Service Commercial’ or ‘Light Industry’. These areas are legacy matters which were created by allocating the ‘Special Use’ zone with ‘Special Provisions’ listed within the Scheme. The Special Provisions usually would refer to a Structure Plan to guide subdivision, development and land uses. The Regulations now require an alternative and consistent approach to development areas, by using the zones ‘Urban Development’ and ‘Industrial Development’.

 

Amendment 28 recently (February 2021) introduced these zones to the Scheme and corrected the zoning of many of these development areas, including the Chapman Hill Road Industrial/Service Commercial precinct.

 

The Chapman Hill Road Industrial/Service Commercial precinct is located on the southern side of the Busselton Bypass and bordered by Chapman Hill Road to the east and the Vasse Diversion Drain and Ambergate North to the west. Initially identified to become a motor vehicle sales precinct, the area is now considered to be a “service commercial and mixed light industrial precinct”.

 

The area was rezoned through Amendment 28 from ‘Special Use’ to ‘Industrial Development’, with ‘Special Provision No. 48’. The special provision identifies the intent of the site and specifies certain land uses and their permissibilities, including ‘Convenience Store’, ‘Medical Centre’ and ‘Bulky Goods Showrooms’. It is understood that these land uses were based on the Zoning Table at the time of the initial Scheme Amendment, replicating the uses that were permissible within the ‘Service Commercial’ and ‘Light Industry’ zones. Amendment 40 was unable to modify the requirements of the special provision given Amendment 28 was still progressing.

 

In order for development to take place, the ‘Industrial Development’ zone requires subdivision in accordance with an approved Structure Plan and ‘hard zoning’ thereafter. This ‘hard zoning’ would bring the subject parcels into line with the remainder of the Scheme by zoning the land as either ‘Service Commercial’ or ‘Light Industrial’, where identified by a Structure Plan, with development therefore being required to comply with the Zoning Table. Alternatively this could be corrected through the drafting of the new Scheme, whichever process occurs first. 

 

Dunsborough Lakes Enterprise Park is currently zoned ‘Special Use No. 24’ with ‘Special Provision No. 42’. Given the timing of previous Amendments 28 and 29 (that made changes to the zone and zone objectives of the Scheme) and concurrent modifications to the Structure Plan, the rezoning of Enterprise Park to ‘Service Commercial’ with an Additional Use for ‘Office’ is expected to be undertaken as a separate Basic Amendment or through the Scheme Review process. Multiple other issues are at play in the Dunsborough area, given there is not currently a specific ‘Service Commercial’ zoned area and the availability of land for relevant uses in Dunsborough is quite limited.

 

For these legacy areas, it would be inappropriate to make this a modification to Amendment 40, and given the risks to the Activity Centre hierarchy are relatively low, these areas will instead be subject to corrections in the new Scheme, or a separate, standalone Amendment.


 

8.            Miscellaneous modifications

Officers recommend minor modifications to proposed clause 4.19 ‘Breweries and Wineries’ to correct drafting errors.

 

The provision makes reference to the ‘Service Commercial’ zone as well as the ‘Light Industry’ and ‘General Industry’ zones, while the Amendment also proposes to make these uses ‘not permitted’ within the ‘Service Commercial’ zone. The Environmental Protection Authority Guidance Statement (Separation Distances between Industrial and Sensitive Land Uses (GS 3)) requirement for buffer distances essentially discounts the ability for this use to be established within the ‘Service Commercial’ zone, given the close proximity to residential areas. It is therefore recommended that reference to the ‘Service Commercial’ zone be removed from the clause to reduce confusion.

 

Another minor modification is recommended at proposed sub-clause 4.19.1(a) to modify the units from “mls” to “ml” to reflect the correct usage of the symbol for millilitre.

 

These recommended modifications are included within the Schedule of Modifications, provided at Attachment A (item no. 5).

 

9.            Retail and economics data

Some of the submissions identify, correctly, that the vacancy rate in the Busselton City Centre is relatively low at present – and that means that there is no need to be concerned about retail leakage and/or that further economic analysis is required to justify aspects of the amendment. Those contentions are flawed, for two key reasons.

 

Firstly, to achieve the strategic aims set out in the LPS, it is not sufficient to avoid having excessive vacancies in existing floorspace – it is also critical to see new investment and delivery of additional floorspace. In the case of both the Busselton City Centre and the Dunsborough Town Centre, there is substantial capacity to accommodate new development, on land that is Zoned but either undeveloped, or under-developed. Secondly, current experience in terms of demand in the City of Busselton economy is quite different to what has occurred in the past, and may well not be a good guide to what may occur in the future – some information to support that contention is set out below.

 

The graph below shows that the period July 2020 to January 2021 saw a period of extraordinary economic growth – with total spend in January 2021 in Busselton alone being nearly $10M higher across the key retail spend categories relative to January 2020.

 

The additional graph below shows month-by-month comparisons, relative to the 2018/19 financial year (i.e. pre-COVID) – showing that in each month since July 2020, total local spend across the key retail categories has been at least 25% and as much as 200% higher than 2018/19. Whilst robust population and economic growth is expected to continue in the City of Busselton, the current period is, quite simply, not necessarily a good guide to what may occur in the future – and to be confident that our main centres can remain viable and attractive locations for investment, it is important that the planning framework send a clear message that those centres are the desired location for investment in shop retail and other high intensity land-uses.

 

Statutory Environment

The key elements of the statutory environment in relation to Amendment 40 are set out in the Planning and Development (Local Planning Schemes) Regulations 2015 and the City of Busselton Local Planning Scheme No. 21. This Scheme Amendment has been prepared having regard to the Act and the Regulations (and the Model Provisions and Deemed Provisions contained therein). Each is discussed below under appropriate subheadings.

 

Planning and Development (Local Planning Schemes) Regulations 2015

The Planning and Development (Local Planning Schemes) Regulations 2015 identifies three different levels of amendments – ‘basic’, ‘standard’ and ‘complex’. The resolution of the local government is required to specify the level of the amendment and provide a brief explanation justifying this specification.

 

Amendment 40 is considered to be a ‘standard’ amendment, given it is consistent with the identified zone objectives provided for within the Scheme, and with the outcomes and recommendations endorsed in the Local Planning Strategy (2019), and will not result in any significant environmental, social, economic or governance impacts on land in the Scheme area.

 


 

City of Busselton Local Planning Scheme No. 21

The proposal is considered to be generally consistent with the objectives of the zones under LPS21. The pertinent objectives of the most relevant zones are provided below.

 

Regional Centre

a.   To provide a genuine centre of community life, socially, culturally and economically.

b.   To ensure that development provides for activation of the street and public spaces, high quality design and a variety of land uses.

 

Centre

a.   To provide a genuine centre of community life, socially, culturally and economically.

b.   To ensure that development provides for activation of the street and public spaces, high quality design and a variety of land uses.

 

Service Commercial

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

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

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

 

Light Industry

a.   To provide for a range of industrial and service commercial uses generally compatible with urban areas, that generally cannot be located in other zones, whilst maintaining the commercial primacy of the Regional Centre and Centre zones.

 

Rural

a.   To provide for the maintenance or enhancement of specific local rural character.

f.    To provide for development and expansion of the viticultural, winemaking and associated tourism activities and other industries related to agricultural activities, in addition to general rural pursuits, in a manner that does not cause adverse environmental impact.

Relevant Plans and Policies

The key policy implications with respect to the Amendment proposal are set out below, and discussed under appropriate sub-headings:

·        State Planning Policy 4.2: Activity Centres for Perth and Peel (2010) and Draft State Planning Policy 4.2: Activity Centre (2020);

·        City of Busselton Local Planning Strategy; and

·        City of Busselton Local Commercial Planning Strategy.

 


 

State Planning Policy 4.2: Activity Centres for Perth and Peel (2010) and Draft State Planning Policy 4.2: Activity Centre (2020)

The main purpose of State Planning Policy 4.2: Activity Centres for Perth and Peel (SPP 4.2) is to specify broad planning requirements for the planning and development of new activity centres, and the redevelopment and renewal of existing centres in Perth and Peel.  It is mainly concerned with the distribution, function, broad land use and urban design criteria of Activity Centres, and with coordinating their respective land use and infrastructure planning.  Whilst it primarily contends with the Perth and Peel region, it can also be used as a guide regional centres.

 

In the time since the Amendment was considered for initiation by the Council, the WAPC advertised the draft revision of SPP 4.2. The draft SPP 4.2 clarifies the ability for the policy to be applied outside the region scheme areas, being at the discretion of the WAPC. The draft SPP should be used to guide the preparation and review of local planning proposals and have due regard to any relevant provisions relating to activity centres role, function and hierarchy in the Local Planning Framework and/or Regional Framework.

 

SPP 4.2 (including the advertised draft) encourages shop-retail uses to be located within a pedestrian friendly urban environment of an Activity Centre. Bulky goods retailing is cited as being unsuitable to the core of Activity Centres due to their large area and associated car parking requirements, corresponding low employment densities, and the need for freight vehicle access (clause 5.6.1(1)). Therefore, clusters of bulky goods retail should be located adjacent to or in close proximity to activity centres.

 

The draft SPP states that (Policy Measures 7.4) “Local planning schemes should ensure that desired activity centre uses are located within activity centres through appropriate zoning and use class permissibility.” The draft SPP also provides a definition for ‘Activity centre use(s)’, reproduced below.

 

Activity centre use(s)

Includes (but not limited to) the following:

•       Retail development: Shop, Bulky Goods Showroom, Liquor Store – Small, Liquor Store – Large, Market and Restricted Premises.

•       Entertainment, Education and Leisure facilities: Amusement Parlour, Educational Establishment, Nightclub, Place of Worship, Recreation – Private, Restaurant / Café, Small Bar, Tavern.

•       Commercial uses: Office, Medical Centre, Consulting Rooms.

•       Services: Small scale automotive services and recycling services.

•       Cultural / Tourism Uses: Art Gallery, Cinema / Theatre, Hotel Tourist Development.

 


 

Local Planning Strategy (LPS)

The LPS sets the long-term strategic planning direction for the whole of the District of the City of Busselton and provides the strategic rationale for decisions related to the progressive review and amendment of the Scheme.  The LPS was adopted for final approval by the Council in September 2016 and was endorsed by the WAPC on 10 December 2019, subject to certain agreed modifications prior to endorsement by the DPLH.  The DPLH formally endorsed the LPS on 13 March 2020.

 

‘Theme 1’ of the LPS, ‘Settlement and Community’, identifies the following relevant objectives and strategies:

 

Objective (a):

“The continued growth as the principal settlement in the District of the Busselton-Vasse Urban Area as a regional centre and the Dunsborough Urban Area as a major town through: the redevelopment and consolidation of the existing urban areas; and through the identification of suitable areas for planned, progressive expansion of those settlements.”

 

Objective (c):

“The creation of compact, liveable and sustainable settlements that provide their residents with housing and lifestyle choice and affordability, a high quality of life, health and wellbeing and convenient access to high quality employment and services.”

 

Strategy (h):

“Generally, but especially in urban growth areas, plan for housing choice, diversity, health, wellbeing and ageing in place, with a mix of housing types and lot sizes, with higher densities in proximity to activity centres and open space areas, and with identification of land for aged and dependent persons’ housing and care facilities in proximity to activity centres in all medium-term urban growth areas.”

 

Strategy (m):

“Identify locations for the following particular significant community facilities –

·    Aged care facilities”

 

Strategy (r):

“Do not support the following –

i.      Unplanned new settlements or urban growth areas, including through creation of new settlements not identified in the established settlement framework or new urban growth areas not identified in the urban growth area framework;

iii.    Planning proposals that would significantly compromise the capacity of urban growth areas to accommodate planned growth;”

 

 


 

‘Theme 2’ of the LPS, ‘Activity Centres and Economy’, identifies the following relevant objectives and strategies:

 

Objective (d):

“The continued growth of the Busselton City Centre and Dunsborough Town Centre as the main centres of the economic, social and cultural life of the District.”

 

Strategy (c):

“…activity centres shall… be developed along predominantly ‘main-street’ lines, with activated public streets and high levels of pedestrian amenity…”

 

Strategy (j):

“Support and pro-actively plan for industrial/service commercial area development… via… Preventing retail activity which can be located in activity centres from being located in industrial/service commercial areas…”

 

Strategy (p):

“Do not support the following –

i.      unplanned new, or expansion of, existing activity centres not identified in the established activity centre framework;

iii)   significant shop retail or office uses locating outside activity centres;

iv)   retail activity, including bulky goods retail, outside activity centres unless there is a clear and compelling argument to do so...”

 

 

Table 4 ‘Industrial/Service Commercial Area Framework’ identifies the prevention of establishing retail activity that should be located in Activity Centres as a key issue within the following areas:

·        Strelly Street/Busselton Light Industrial Area;

·        Bussell Highway Service Commercial;

·        Chapman Hill Road Service Commercial; and

·        Vasse Light Industrial, Services Commercial.

 

Local Commercial Planning Strategy (LCPS)

The Local Commercial Planning Strategy (LCPS), adopted by Council on 10 November 2010, provides the long term strategic land use planning and strategic direction for the development of commercial land within the District.

 

The LCPS considered and made recommendations on a number of matters relevant to Amendment 40:

 

Recommendation 9:

“Further service commercial development along major roads, including the Busselton Bypass, Bussell Highway and Causeway Road, other than that accommodated by existing zonings and/or specifically supported by the Strategy is not supported.”

 

Recommendation 11:

“Control retail intrusion into the industrial areas of the shire, particularly Strelly Street.”

 

Recommendation 38:

“Council should consider the need for an Amendment to the TPS to restrict retail uses in the industrial zone to only that which is necessary as an ancillary component to the main industrial activity.”

 

Financial Implications

There are no financial implications associated with the Officer Recommendation.

Stakeholder Consultation

The Amendment was advertised for 42 days, ending 18 November 2020, with notifications being sent directly to landowners within the ‘Regional Centre’ (Busselton City Centre), ‘Centre’ (Dunsborough Town Centre), ‘Service Commercial’ and ‘Light Industry’ zones.

 

Twelve government agency submissions were received with no substantive issues being raised. Nineteen public submissions were received which can be outlined as follows:

·    Specific or general SUPPORT in relation to the matters proposed:                                  2

·    Specific or general OBJECTION in relation to the matters proposed:                              14

·    Specific or general COMMENT or CONCERN in relation to the matters proposed:    3

 

The substance of objections and concerns can be broadly classified as follows:

·    Changing the ‘Bulky Goods Showroom’ land use definition.

·    Changing the permissibilities of the ‘Bulky Goods Showroom’ land use.

·    The prohibition against the sale of certain products from the ‘Service Commercial’ and/or ‘Light Industry’ zones.

·    The prohibition of land uses from the ‘Service Commercial’ and/or ‘Light Industry’ zones.

 

A number of the submissions were based on assumptions, sometimes incorrectly, surrounding the classification of land uses and ‘incidental uses’.

 

A Summary of Submissions, along with officer comments in respect to each submission, is provided at Attachment B. The most substantive matters raised by the submissions are discussed in the Officer Comment section, above.

Risk Assessment

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

 

The implementation of the officer recommendation will involve adopting the Amendment for final approval and referral to the Western Australian Planning Commission and Minister for Planning for final approval. No risks of a medium or greater level have been identified.

Options

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

1.         Resolve to not support the Amendment for final approval (and provide a reason for such a decision). The Council would need to make that as a recommendation to the Minister, setting out the rationale for the recommendation. The decision would then rest with the Minister, having also received and considered a recommendation on the amendment from the Western Australian Planning Commission.

2.         Seek further information before making a final determination.

3.         Make different or further changes.

CONCLUSION

As a result of the assessment detailed above, officers are of the view that the proposal is generally consistent with the aims and objectives of the State and local planning policy framework. It is recommended that the Council provides a recommendation to the Western Australian Planning Commission to endorse the final approval of Amendment 40, subject to the modifications set out at Attachment A.

TIMELINE FOR IMPLEMENTATION OF OFFICER RECOMMENDATION

The implementation of the officer recommendation will involve the referral of Amendment 40 to the Western Australian Planning Commission for final approval and this will occur within 21 days of the resolution.


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13.2

Attachment a

Schedule of Modifications

 




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13.2

Attachment b

Summary of Submissions

 
























































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13.2

Attachment c

Busselton City Centre Retail and Commercial Analysis

 




























































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13.2

Attachment d

Proposed Modifications to the Zoning Table

 









 


Council                                                                                      321                                                      13 October 2021

14.             Engineering and Work Services Report

14.1           RFT 04/21 ROAD NETWORK UPGRADE PEEL TERRACE / CAUSEWAY ROAD INTERSECTION UPGRADE STAGE 1

STRATEGIC THEME

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

STRATEGIC PRIORITY

2.12 Provide well maintained community assets through robust asset management practices.

SUBJECT INDEX

Tenders

BUSINESS UNIT

Engineering and Technical Services

REPORTING OFFICER

Manager, Engineering and Technical Services - Daniell Abrahamse

AUTHORISING OFFICER

Director, Engineering and Works Services - Oliver Darby

NATURE OF DECISION

Contractual: To enter into a contract e.g. a lease or the award of a tender etc.

VOTING REQUIREMENT

Simple Majority

ATTACHMENTS

Attachment a   Peel Terrace/Queen Street Upgrade - Stage 1A and 1B Concept Drawing

Attachment b    Albert/Queen Street - Concept Drawing - Stage 2

Attachment c    Published Under Separate Cover  Confidential Confidential RFT 04/21 Tender Recommendation Report, Evaluations and Panel Consensus Score Sheet  

 

OFFICER RECOMMENDATION

That the Council:

1.         Pursuant to RFT 04/21 Road Network Upgrade - Peel Terrace/Causeway Road Intersection Upgrade – Stage 1A – Option 2, accept the tender from BCP Contractors Pty Ltd as being the most advantageous tender.

2.         Delegates power and authority to the Chief Executive Officer to negotiate and agree minor variations in accordance with Regulation 20 of the Local Government (Functions and General) Regulations 1996.

3.         Agrees to allocate an additional $87,826 from the Major Traffic Improvements Reserve (Reserve #137) towards the Peel Terrace/Causeway Road Intersection Upgrade – Stage 1A to ensure sufficient funding for the project. 

 

EXECUTIVE SUMMARY

The City of Busselton invited tenders under Request for Tender RFT 04/21 Road Network Upgrade - Peel Terrace/Causeway Road Intersection Upgrade – Stage 1A (RFT 04/21) for a suitably experienced and qualified contractor to upgrade the Peel Terrace/Causeway Road intersection.

 

This report recommends that Council:

·        endorse the outcome of the evaluation panel’s assessment;

·        delegate power and authority to the CEO to negotiate and agree final terms and conditions with the successful tenderer, BCP Contractors Pty Ltd (BCP).

 


 

BACKGROUND

The project scope for RFT 04/21 is comprised of the following:-

 

(i)        Upgrading of the Peel Terrace roundabout – linking Causeway Road, upgrading the north bound lane of the roundabout form a single lane to a dual lane;

(ii)       All the associated earthworks for Stage 1A of this Task;

(iii)      Realigning the existing shared path along Causeway Road from the Vasse River bridge heading north along the western side of works;

(iv)      Drainage, water sensitive urban design principles to be applied where practicable; and

(v)       New road signs and line markings.

 

The contractors submitted two options to undertake the works:

Option 1:             Partial road closure of the intersection that will still allow through traffic;

 

Option 2:             Full road closure of the intersection during construction that will close the intersection completely during construction. 

 

Both of these options were priced and Option 2 was found to be the cheaper option, as the construction period will be reduced from 14 weeks to 7 weeks.

 

A concept plan of the proposed works for Stage 1A and 1B can be seen at Attachment A. It should be noted that Stage 1B, comprising of a dedicated left slip lane through Victoria Square, will be undertaken as part of the Stage 2 works (see Attachment B) that includes upgrading the intersection of Albert Street and Queen Street.

 

The above-mentioned project forms part of the City’s ongoing major road network improvements.

 

OFFICER COMMENT

On 21 August 2021, tenders were invited via TenderLink and advertised in ‘The West Australian’ newspaper. Tenders closed on 8 September 2021 and two (2) submissions were received:

1.         BCP Contractors Pty Ltd (BCP); and

2.         Leeuwin Civil Pty Ltd.

Assessment Process

In accordance with the City’s procurement practices and procedures, assessments were carried out by an evaluation panel comprising City officers with relevant skills and experience. The assessment process included:

(a)       Assessing submissions received against relevant compliance criteria. The compliance criteria were not point scored. Each submission was assessed on a Yes/No basis as to whether each criterion was satisfactorily met. All tenders were deemed compliant; and

(b)       Assessing submissions received against the Qualitative Criteria weighted as detailed below.


 

Qualitative Criteria

Weighting

Relevant Experience

10%

Local Content

5%

Key Personnel Skills and Experience

10%

Respondents Resources

10%

Demonstrated Understanding

25%

 

The net price was scored using the ‘Average Based Scoring Method’ recommended by WALGA in the ‘Local Government Purchasing and Tender Guide’.

 

The panel members individually assessed the qualitative criteria for each schedule, then met and applied an average to provide a final ranking. The qualitative and price scores were then added together to indicate the rankings.

 

Summary of Assessment Outcomes

Of the two submissions received for the two options, BCP ranked first on both the Qualitative Criteria and on price following application of Regional Price Preference for Option 2 – Full Road Closure. This resulted in BCP being ranked first overall.  BCP demonstrated:

·        a good range of relevant experience and ability to deliver projects of a similar nature in terms of the project scope of works;

·        contributions to the local community; 

·        skilled and experienced staff with a strong understanding of the project requirements;

·        extensive plant and equipment as well as details of material supply and a fully operational workshop to ensure plant and equipment is fully operational; and

·        a very detailed project methodology provided, that satisfies the requirements of the project brief.

 

Option 2

Option 2 requires full closure of the intersection during the construction works and this option has been recommended for the following reasons:

1.         The overall project cost will be dramatically reduced;

2.         The project will be completed in seven weeks (full closure) vs fourteen weeks (partial closure);

3.         This will result in savings on traffic management and the management and supervision of the project;

4.         A cost benefit assessment of all the options indicated that the full closure option is most advantageous to the City.

 


 

Statutory Environment

Section 3.57 of the Local Government Act 1995 (the Act) requires a local government to invite tenders before it enters into a contract of a prescribed kind under which another person is to supply goods and service. Part 4 of the Local Government (Functions and General) Regulations 1996:

·        requires that tenders be publicly invited for such contracts where the estimated cost of providing the required goods and/or service exceeds $250,000; and

·        under Regulations 11, 14, 18, 20 and 21A, provides the statutory framework for inviting and assessing tenders and awarding contracts pursuant to this process.

 

The officer recommendation complies with the above-mentioned legislative requirements.

 

The estimated expenditure is in excess of $500,000 which is above the Chief Executive Officer’s delegated authority, therefore the award of the tender requires a decision of Council.

 

Relevant Plans and Policies

The City's Purchasing, Regional Price Preference, Occupational Safety and Health, and Asset Management policies, and the City’s Engineering Technical Standards and Specifications, were all relevant to RFT 04/21, and have been adhered to in the process of requesting and evaluating this tender.

 

Financial Implications

The original costing for this project was $610,000 and included some minor design works, service relocations and the construction works. The two tender submissions received were both in excess of the available budget.  This is to some extent attributed to the current inflated construction costs due to the shortage of contractor resources and increased workloads.

 

The project is to be funded from the endorsed Peel & Queen Street Roundabout project which has a remaining budget of $590,000. Expenditure to date has been used for services and design works. It is recommended that an amount of $87,826 is drawn down from the Major Traffic Improvement Reserve (Reserve #137) to cover the balance of the overall project cost. The Major Traffic Improvement Reserve currently has an available balance of $997,471 estimated at the end of the 2021/22 financial year.  With the proposed amendment, the balance of the Major Traffic Improvement Reserve would be $909,645.

 

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’s recommendation has been undertaken using the City’s risk management framework, with the intention being to identify risks which, following implementation of controls, are identified as medium or greater. There are no such risks identified, with the preferred tenderer assessed as being capable of delivering the services to a suitable service level.

 


 

Options

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

1.         Determine not to accept the tender from BCP Contractors Pty Ltd and accept a tender(s) from the other Contractor who submitted; or

2.         Decline to accept any tender.

 

CONCLUSION

The submission from BCP is considered the most advantageous to the City. It is recommended that BCP Contractors Pty Ltd be awarded the contract to deliver RFT 04/21 Road Network Upgrade - Peel Terrace/Causeway Road Intersection Upgrade – Stage 1A – Option 2.

 

TIMELINE FOR IMPLEMENTATION OF OFFICER RECOMMENDATION

If endorsed by Council, it is expected the City will enter into a contract with BCP Contractors Pty Ltd by mid October 2021.

The works are scheduled to commence after the December/January 2021/2022 school holiday and will be completed before Easter 2022.

 


Council

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13 October 2021

14.1

Attachment a

Peel Terrace/Queen Street Upgrade - Stage 1A and 1B Concept Drawing

 


Council

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13 October 2021

14.1

Attachment b

Albert/Queen Street - Concept Drawing - Stage 2

 


Council                                                                                      329                                                             13 October 2021

15.             Community and Commercial Services Report

15.1           MARKETING AND EVENTS REFERENCE GROUP OUTCOMES

STRATEGIC THEME

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

STRATEGIC PRIORITY

2.5 Facilitate events and cultural experiences that provide social connection.

SUBJECT INDEX

MERG Funding

BUSINESS UNIT

Commercial Services

REPORTING OFFICER

Events Coordinator - Peta Tuck

AUTHORISING OFFICER

Manager Community and Recreation Services - Dave Goodwin

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

Nil

 

OFFICER RECOMMENDATION

That the Council endorses funding allocations towards the following events, to be funded from the 2021/22 Events Budget:

Event

Funding Allocation

Australia Day – Busselton celebration

Up to $5,000

Best Cabernet Sauvignon Award – Margaret River Wine Awards

$5,000

Mitchell Park re-opening event

$3,000

WA State Dirt Kart Titles

$3,000

Busselton Chamber of Commerce – 2021 Business Excellence Awards

$10,000

Totals

Up to $26,000

 

EXECUTIVE SUMMARY

A meeting of the Marketing and Events Reference Group (MERG) was held on Wednesday 1 September 2021. This report presents the recommendations from this meeting.

 

BACKGROUND

At the Ordinary Meeting of Council held on 13 April 2011, Council resolved (C1104/114) to endorse the implementation of a differential rating system whereby properties rated industrial and commercial across the City would directly contribute toward the City’s continued support of tourism, marketing and event activities. The City also established a key stakeholders’ reference group, known as the ‘Marketing and Events Reference Group’ (MERG), to make recommendations to Council with respect to the marketing and events budget allocations.

 

 

 

At its meeting on 22 June 2011, Council resolved (C1106/201) to introduce a 3% differential rate on ‘industrial’ and ‘commercial’ rated properties, which has increased over time to 10%. The proceeds from the differential rate are allocated towards funding events and marketing.

 

The 2021/22 budget for marketing and events totals $1,196,700. The proposed breakdown of this budget is as follows:

·        $924,900 – Events

·        $231,800 – Marketing and economic development initiatives

·        $40,000 – City led events

 

This excludes budget allocations for Leavers Week, administration, and events staffing.

 

A MERG meeting was held on Wednesday 1 September 2021, with the following key matters presented:

·        Update on events held since the last meeting on 27 April 2021 and upcoming major events.

·        Consideration of funding applications for the 2021/22 events and marketing budgets.

 

OFFICER COMMENT

Supporting the development and attraction of new events throughout the year, the City’s Events Sponsorship Programme promotes the City of Busselton as an attractive event tourism destination.  At the MERG meeting held on 1 September 2021, a range of requests for events funding were considered as outlined below:

 

Requests for Funding – 2021/22 Events Budget

Five (5) applications were received, requesting funding totalling of $37,000.

 

Rotary Club – Australia Day

At the MERG meeting on 27 April 2021, members considered a request for multi-year funding from the Rotary Club of Geographe Bay for the Australia Day celebrations in 2022, 2023 and 2024. Previous funding for this event had been for an annual amount of $3,000, the requested funding for the years 2022–2024 was for an increase from $3,000 to $6,000 per year. The reason given for the requested increase was to allow the Rotary Club to pay a party hire business to supply, deliver and set up the chairs and tables for the community breakfast, citing an ageing membership making it harder for them to undertake this task themselves.

 

It was decided at the meeting to defer a recommendation on the requested funding until officers had a chance to speak to the Rotary Club further. Feedback had also been received that participation numbers have been declining, and collaboration may be required to look at ways to revitalise the event.

 

Officers have now met with Rotary members, who have suggested the following changes to revamp the Australia Day event, including moving the citizenship ceremony from 7.00am to 8.30am to encourage more people to attend, providing more entertainment and activities for children, and promoting the event more through print and social media. They will also pay Vasse Lions Club to set up the chairs and tables for them.

 

To assist with these new initiatives, City officers will assist the Rotary Club to find other funding avenues to apply for.

The MERG recommendation is to fund the Rotary Club an amount of $3,000 in 2022, with an option to fund an additional $2,000 if they are unsuccessful in securing funding from other sources. This is to be funded from the 2021/22 Events Budget. This will be a single year agreement to allow officers to review the success of the changes before locking in a multi-year agreement. 

 

Margaret River Wine Association Best Cabernet Sauvignon Trophy Sponsorship

The City has been approached by the Margaret River Wine Association to renew their sponsorship of the Best Cabernet Sauvignon Trophy at the Langton’s Margaret River Wine Show on 29 October 2021. Support of this trophy by the City of Busselton was well received in 2020, and acted to highlight and celebrate the high number of quality wineries within the City of Busselton municipality. At the City’s request, the awards night has been moved to a venue within the City, at Swings and Roundabouts. The City has been recognised throughout the year as a sponsor and member of the Margaret River Wine Association.

 

The MERG recommendation is to support the requested funding of $5,000, to be allocated from the 2021/22 Events Budget.

 

Mitchell Park Re-opening Event

The redevelopment of Mitchell Park is expected to be completed by the end of September, with planning now underway for an opening event on Saturday 9 October from 1pm – 4pm. The event will be community focussed, with local entertainers invited to perform and CBD businesses encouraged to participate. The Building Busselton Town Team will be assisting with scheduling activities for the event.

 

The MERG recommendation is to allocate up to $3,000 for the Mitchell Park opening event, to be funded from the 2021/22 Events Budget.

 

WA State Dirt Kart Titles

The Busselton Dirt Kart Club has been selected to host the WA State Titles for go-karting, on the weekend of 5-7 November 2021.

 

The event attracts more than 200 competitors and approximately 800 spectators for the three days of racing. There is no camping on site for the event, with most visitors staying for an extended period in accommodation.

 

The State Titles were last held in Busselton in November 2017, where they attracted more than 1,500 visitors over the weekend.

 

Busselton Dirt Kart Club have requested sponsorship of $3,000 from the City. The MERG recommendation is for the allocation of $3,000 to be funded from the 2021/22 Events Budget, for the 2021 WA State Dirt Kart Titles.

 

Busselton Chamber of Commerce (BCCI) – 2021 Business Excellence Awards

The City has received a request from the Busselton Chamber of Commerce (BCCI) to sponsor the 2021 Business Excellence Awards. The aim of the Awards is to:

·        Encourage businesses to evaluate their current business practices, look for further opportunities and seek best practice methods to assist their business to remain sustainable or to seek growth.

·        Recognise as role models the significant contribution businesses and organisations are making throughout region.

·        Acknowledge the contribution that businesses and organisations are having in the growth and sustainability of the local economy.

·        Reward the effort and success that business and organisations are achieving in the Capes Region with recognition and prizes designed to build capacity in their business.

·        Promote sponsors and presenters as responsible corporate citizens helping to build business communities throughout the Capes Region.

 

BCCI have requested funding of $20,000, consisting of the following:

·        $15,000 - Judging process: contributing towards the estimated costs of $14,200 for three expert judges over a 5-day judging period, plus the awards night and the time required to respond to applicants post event; and $1,600 for accommodation, meals and transport for judging period and awards night.

·        $5,000 - Gold Sponsorship of the awards as per previous years.

 

In previous years, these awards have been allocated $5,000 in sponsorship funding.

 

The MERG recommendation is for the allocation of $10,000 towards the 2021 Business Excellence Awards, to be allocated from the 2021/22 Events Budget. This allocation consists of $5,000 towards the judging process costs plus $5,000 for Gold Sponsorship of the awards.

 

In summary, the MERG recommends the following:

 

Event

Requested

MERG Recommendation

Australia Day – Busselton celebration

$6,000

Up to $5,000*

Best Cabernet Sauvignon Award –

Margaret River Wine Awards

$5,000

$5,000

Mitchell Park re-opening event

$3,000

$3,000

WA State Dirt Kart Titles

$3,000

$3,000

BCCI – 2021 Business Excellence Awards

 $20,000

$10,000

Totals

$37,000

Up to $26,000

 

* MERG recommendation is to fund the Rotary Club an amount of $3,000 in 2022, with an option to fund up to an additional $2,000 if they are unsuccessful in securing funding from other sources.

 

Statutory Environment

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

 

Relevant Plans and Policies

The officer recommendation aligns with the City’s Events Policy which provides event organisers with information on the event application and approval process and event sponsorship guidelines.

 

Financial Implications

At the Council meeting on 26 July 2021, Council resolved (C2107/138) to include an allocation of $1,196,700 in the 2021/22 Marketing and Events Budget, which contains the following allocations:

·        $924,900 towards event sponsorships,

·        $231,800 towards Marketing and Economic Development initiatives, and

·        $40,000 towards City run events.

In addition to the above allocation for event sponsorships, an amount of $55,500 was carried over from the 2020/21 Events Budget due to the approved carry-over of $38,000 from the CinefestOZ 2020 event and the rescheduling of two events into the 2021/22 financial year (Raising the Vibe concert - $5,000; Margaret River Region Open Studios - $12,500). Therefore, the overall 2021/22 Events Budget is $980,400.

 

A total amount of $735,000 is currently committed from the 2021/22 Events Budget through multi-year agreements and Round 1 of the Event Sponsorship Program. In addition, $110,000 is allocated towards the development of the Winter Wonderland event. This leaves a balance of $135,400 in the 2021/22 Events Budget for Round 2 of the Event Sponsorship Program and any further event attraction or initiatives. This balance includes funds from cancelled events.

 

In addition to the $231,800 allocated towards Marketing and Economic Development initiatives, an amount of $45,000 was carried over from the 2020/21 Marketing Budget due to two (2) funded projects not having been completed (Tourism Information Bay Signage $5,000; Event Strategy review $40,000). Therefore, the overall 2021/22 Marketing Budget is $276,800.

 

Funds currently committed from the 2021/22 Marketing Budget total an amount of $158,625, which is comprised of:

·        Airport Marketing Reserve - $50,000;

·        Busselton Performing Arts and Convention Centre - $50,000;

·        Update of the City’s Events Strategy - $40,000;

·        Update of tourism signage - $5,000; and

·        Allocations through Round 1 - $13,625.

 

This leaves a balance of $118,175 remaining for any further initiatives.

 

There is also a balance of $219,852 remaining in the Marketing and Area Promotions Reserve, as well as $200,000 carried over for the development of the electronic billboard.

 

Stakeholder Consultation

Consultation has been undertaken with representatives from the Busselton and Dunsborough Yallingup Chambers of Commerce and Industry, the Margaret River Busselton Tourism Association and Busselton Jetty Inc.

 

Risk Assessment

An assessment of the potential implications of implementing the officer recommendation has been undertaken using the City’s risk management framework, with risks assessed taking into account any controls already in place.  The officer recommendation does not introduce any risks identified as being of a high or medium level.

 

Options

Council may choose not to support the recommendations made by MERG and resolve not to endorse part or all of the recommendations.

 


 

CONCLUSION

The MERG has been established by Council to make recommendations on the way in which funds raised through the industrial and commercial differential rate for the purposes of events and marketing are allocated. This report contains the recommendations made at the 1 September 2021 MERG meeting which, if endorsed by Council, will result in the continuation of high quality events being held within the region, supported by successful marketing promotions. All recommendations support Council’s vision of being recognised as the ‘Events Capital WA’.

 

TIMELINE FOR IMPLEMENTATION OF OFFICER RECOMMENDATION

Following Council’s decision, the outcomes will be communicated to MERG members and the relevant event/marketing bodies for their information and implemented where required.

 


Council                                                                                      332                                                             13 October 2021

16.             Finance and Corporate Services Report

16.1           COMMERCIAL LEASE - PORTION OF OLD COURTHOUSE ARTGEO COMPLEX

STRATEGIC THEME

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

STRATEGIC PRIORITY

4.3 Make decisions that respect our strategic vision for the District.

SUBJECT INDEX

Agreements and Contracts

BUSINESS UNIT

Corporate Services

REPORTING OFFICER

Senior Leasing and Property Officer - Ann Strang

AUTHORISING OFFICER

Director Finance and Corporate Services - Tony Nottle

NATURE OF DECISION

Contractual: To enter into a contract e.g. a lease or the award of a tender etc.

VOTING REQUIREMENT

Simple Majority

ATTACHMENTS

Attachment a   Premises Plan  

 

OFFICER RECOMMENDATION

That the Council:

1.         Advertises the proposed disposition of property in accordance with section 3.58 of the Local Government Act 1995 for the terms and conditions outlined in this report and, if there are no adverse objections, authorise the CEO to enter into a lease and licence in accordance with recommendations 2 and 3 below.

2.         Resolves to enter into a lease agreement, subject to the Minister for Lands approval, with P.B Collett & L SaeNguan (ABN 83 187 584 037) for a portion of Reserve 35361, being Lot 361, Deposited Plan 182761, Volume LR3013, Folio 834, 4 Queen Street, Busselton as shown hatched on Attachment A , subject to the terms and conditions of the lease including the following:

(a)       term of 5 years, commencing within 2 months from the amendment to the Management Order for Reserve 35361;

(b)       annual rent to commence at $13,000 exclusive of GST and outgoings;

(c)       rent to be reviewed by CPI on each anniversary;

(d)       permitted use to operate a café and small bar  subject to all necessary approvals being granted; and

(e)       other commercial terms which are appropriate to the use of the leased premises.

3.         Following approval from the Minister for Lands in relation to the proposed amendment to the Management Order over Reserve 35361 (the Reserve), authorise the Chief Executive Officer to enter into a licence  with P.B Collett & L SaeNguan (ABN 83 187 584 037) of a further portion of the Reserve on the terms and conditions outlined in this report.

 

EXECUTIVE SUMMARY

The Old Post Office, which is located within the Old Courthouse at the Artgeo Cultural Complex (the Complex) has been leased as a café since 2010. The current lease expired on 30 June 2020 and the tenants have remained in occupation on a month by month basis. 

The purpose of this report is to seek Council approval to offer a new lease to the current tenants, subject to the approval of the Minister for Lands, compliance with section 3.58 of the Local Government Act 1995 (LGA), and future consideration for a licence to expand into their business into the Reserve.

BACKGROUND

In 2009, the Council considered a report detailing a business plan for the Complex which in part included a leasing component.  On 25 November 2009, the Council resolved (C0911/41) to enter into a commercial lease for the Old Post Office and veranda for the purpose of tearooms. 

 

In late 2013, the tenant at the time sold the business and assigned the remainder of the lease.  In May 2015, the Council resolved (C1505/135) to enter into a further 5 year lease term with the new tenant.  In October 2018, the tenants sold the business and assigned the remainder of the term of the lease to P.B Collett & L SaeNguan (the Tenants), trading as The Lockup Coffee House. 

 

The City has been exploring new opportunities and ways to activate the Complex. City officers sought EOI’s for a coffee lounge/licensed bar in the Complex.  A number of informal enquiries were received along with the current tenant also keen to expand their offerings to include the sale of liquor. These opportunities have been hampered by the current purpose under the Management Order and limitations on the extent and type of commercial use permitted.

 

In January 2020, the Council resolved (C2001/011) to write to the Minister for Lands to request a revision to the Management Order in respect to Reserve 35361 to allow commercial leasing of the site and buildings, subject to the income generated being allocated towards the preservation and maintenance of the heritage buildings. 

 

In accordance with the resolution, the City wrote to the Department of Planning, Lands and Heritage (DPLH) seeking an amendment to the Management Order. In response, DPLH advised that they generally do not support commercial use of Crown land and the City would need to demonstrate how the proposal fits in to a wider activation strategy for the cultural precinct. A copy of the draft Busselton Cultural Precinct Masterplan was provided to DPLH.

 

DPLH have since advised that there can be more scope with heritage listed buildings and that this proposal supports activation of the Precinct.  A Management Order Deed is currently being prepared by DPLH.  City Officers have been advised that the Management Order will be conditional upon the City entering into a Deed under which the City is accountable to DPLH on the annual income generated by the commercial operation and the nature and extent of the expenditure on the heritage aspect of the buildings. 

 

On receipt of the new Management Order and execution of the appropriate agreement, there will be an opportunity to offer the Café proponents a licence of a further portion of the Reserve.  The precise extent of the licensed area and the fee for this area will be the subject of negotiations between City officers and the Café owners, hence the proposal to authorise the CEO to enter into future negotiations and grant a licence to the Café proprietors when the City is in a position to do so.  

OFFICER COMMENT

The current lease expired on 30 June 2020 and the Tenants have since occupied the building under holding over provisions since then. The Tenants are keen to secure a new lease for a further 5 years.  

 

The area leased to the Tenants is the Old Post Office and the veranda area (as shown on attachment A).  The current lease also allows for the use of the Magistrate Room within the Old Courthouse from time to time.  The Tenants also hold an Outdoor Eating Facility Permit for the alfresco area at the front of the building.  As the alfresco area is outside the Reserve boundary, the tenure in the form of a permit is appropriate for this space.

 


 

The café is well patronised during the day, however, with the café currently closed from mid-afternoon the remainder of the Complex has an appearance of also being closed at that time.  Therefore, if it was viable for the café to remain open later in the day and early evening, this would be beneficial to both the City and the Tenant.

 

The Tenants have indicated a willingness to extend their opening hours if their offerings can include the sale of alcohol.  They have also expressed an interest in expanding the café/bar area into a larger part of the Reserve if the opportunity arises. 

 

Of more importance to the Tenants at this stage is the renewal of their lease of the existing café footprint. Negotiations in relation to their future proposal to expand into other parts of the Reserve will follow once the new Management Order is issued. Officers therefore suggest that the CEO be given authority to negotiate and enter into a licence of a further portion of the Reserve for the purpose of expanding the existing business and including the sale of alcohol throughout; the licence fee to be determined by a market valuation at the time.

 

It is proposed that the City enter into a new lease with the Tenants for a term of 5 years commencing within 2 months from the change to the Management Order. The annual rent is to commence at $13,000 exclusive of GST. 

Statutory Environment

Local governments are compliant with the LGA if the procedure under section 3.58(3) is followed. This requires the publishing of prior notice of the proposed disposition and invite submissions to be made. Any submissions received before the date specified in the notice must be considered.

Section 3.58(4) of the LGA requires that the disposition includes either a valuation not more than six months’ old or a declaration by resolution that a valuation older than 6 months is considered a true indication of the value at the time of the disposition. A valuation of the proposed leased area was obtained on the 17 June 2021.

The Commercial Tenancy (Retails Shops) Agreements Act 1985 (CTA) regulates commercial tenancy agreements relating to certain shops. The CTA applies to the café lease.  The CTA regulates some of the provisions which may be contained in the lease including rent reviews, options to renew, trading hours and operation expenses.

 

The proposed lease and licence are over land vested with the City, the City has the power to lease or licence for periods of up to 21 years, subject to the consent of the Minister for Lands for the designated purpose of Community and Cultural.

Relevant Plans and Policies

The officer recommendation aligns to the Business Plan for operation of the ArtGeo Cultural Complex and the draft Busselton Cultural Precinct Masterplan.

 

Financial Implications

The market rental income for the café is valued at $13,000 plus GST per annum. The Tenant will be responsible for all outgoings. All rental income will be directed towards the maintenance costs associated with the heritage buildings within the Complex.

Stakeholder Consultation

The City has worked with and now has support from the DPLH to offer commercial leasing of this portion of the Reserve and, once the new Management Order is issued and approved, the licence over a further portion.

Risk Assessment

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

Options

As an alternative to the proposed recommendation the Council could resolve to not enter into a lease with the Tenants.

CONCLUSION

The opening of tearooms within the Old Post Office has created vibrancy and atmosphere at the Complex. The Tenants have demonstrated their ability to provide sustainable and consistent, quality services. They have helped to support an increase in visitor numbers to the Complex and to activate and add vibrancy to the Precinct overall. Their future plans include the establishment of a small bar and extended opening hours, all of which are supported at an officer level. For these reasons, it is recommended that the Council enter into a lease with the Tenants and facilitate future negotiations in relation to the extension of their business in the form of a licence over a further portion of the Land.

TIMELINE FOR IMPLEMENTATION OF OFFICER RECOMMENDATION

The City will enter into a lease within two months of the receipt of the new Management Order for Reserve 35361.

 


Council

336

13 October 2021

16.1

Attachment a

Premises Plan

 


Council                                                                                      337                                                             13 October 2021

17.             Chief Executive Officers Report

17.1           COUNCILLORS' INFORMATION BULLETIN

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

Councillors' Information Bulletin

BUSINESS UNIT

Executive Services

REPORTING OFFICER

Reporting Officers - Various

AUTHORISING OFFICER

Chief Executive Officer - Mike Archer

NATURE OF DECISION

Noting: The item is simply for information purposes and noting

VOTING REQUIREMENT

Simple Majority

ATTACHMENTS

Attachment a   Letter from Hon. John Carey MLA, Minister for Local Government - Local Government Review Panel

Attachment b    Current Running State Admnistrative Tribunal Reviews  

 

OFFICER RECOMMENDATION

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

17.1.1       Letter from Hon. John Carey MLA, Minister for Local Government - Local Government Review Panel

17.1.2       State Administrative Tribunal Reviews

 

EXECUTIVE SUMMARY

This report provides an overview of a range of information that is considered appropriate to be formally presented to the Council for its receipt and noting. The information is provided in order to ensure that each Councillor, and the Council, is being kept fully informed, while also acknowledging that these are matters that will also be of interest to the community.

 

Any matter that is raised in this report as a result of incoming correspondence is to be dealt with as normal business correspondence, but is presented in this bulletin for the information of the Council and the community.

 

INFORMATION BULLETIN

17.1.1       Letter from Hon. John Carey MLA, Minister for Local Government - Local Government Review Panel

A letter from the Hon. John Carey MLA, Minister for Local Government, acknowledging the City’s feedback to the Local Government Review Panel, is at Attachment A.

17.1.3       State Administrative Tribunal Reviews

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


Council

338

13 October 2021

17.1

Attachment a

Letter from Hon. John Carey MLA, Minister for Local Government - Local Government Review Panel

 


Council

340

13 October 2021

17.1

Attachment b

Current Running State Admnistrative Tribunal Reviews

 


 


Council                                                                                      341                                                             13 October 2021

18.             Motions of which Previous Notice has been Given

Nil

 

19.             urgent business

 


Council                                                                                      343                                                             13 October 2021

20.             Confidential Matters

20.1          CEO PERFORMANCE REVIEW

The report listed above is of a confidential nature, in accordance with section 5.23(2)(a) and    (b) of the Local Government Act 1995. This report has been provided to Councillors, the Chief Executive Officer and Directors only.


 

21.             Closure