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

CITY OF BUSSELTON

MINUTES OF THE Policy and Legislation Committee MEETING HELD ON 25 May 2022

TABLE OF CONTENTS

ITEM NO.                                        SUBJECT                                                                                                                              PAGE NO.

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

2....... Attendance. 2

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

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

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

5.1          Minutes of the Policy and Legislation Committee Meeting held 27 April 2022. 3

6....... Reports. 4

6.1          AMENDED 2022 COMMITTEE MEETING DATES. 4

6.2          HOLIDAY HOMES AMENDMENT LOCAL LAW... 7

7....... General Discussion Items. 30

8....... Next Meeting Date. 30

9....... Closure. 30

 


Policy and Legislation Committee                                  2                                                                         25 May 2022

MINUTES

 

MINUTES OF the Policy and Legislation Committee HELD IN the Committee Room, Administration Building, Southern Drive, Busselton, ON 25 May 2022 AT 10.30am.

 

1.               Declaration of Opening and Announcement of Visitors

The Presiding Member opened the meeting at 10:39am.

 

2.               Attendance 

Presiding Member:

 

Members:

 

Cr Ross Paine

 

Cr Anne Ryan

Cr Kate Cox

Cr Jodie Richards

Cr Sue Riccelli (Deputy)

 

Officers:

 

Mr Paul Needham, Director Planning and Development Services
Ms Sarah Pierson, Manager Governance and Corporate Services
Ms Rachel Runco, Manager Regulatory Services

Mr Ian McDowell, Ranger and Emergency Services Coordinator
Ms Sharon McTaggart, Senior Ranger
Ms Joanna Wilkinson, Strategic Planner

Ms Briony McGinty, Legal Officer
Ms Jo Barrett-Lennard, Governance Officer
 

Apologies:

 

Cr Phill Cronin

 

3.               Public Question Time

                   Nil

 

4.               Disclosure Of Interests

Nil

 


5.               Confirmation and Receipt Of Minutes

5.1             Minutes of the Policy and Legislation Committee Meeting held 27 April 2022

Committee Decision

PL2205/450            Moved Councillor J Richards, seconded Councillor K Cox

That the Minutes of the Policy and Legislation Committee Meeting held 27 April 2022 be confirmed as a true and correct record.

CARRIED 5/0

  


Policy and Legislation Committee                                  4                                                                         25 May 2022

6.               Reports

6.1             AMENDED 2022 COMMITTEE MEETING DATES

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

Committee Meetings

BUSINESS UNIT

Governance Services

REPORTING OFFICER

Governance Coordinator - Emma Heys

AUTHORISING OFFICER

Manager Governance and Corporate Services - Sarah Pierson

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

 

Committee Decision

PL2205/451            Moved Councillor K Cox, seconded Councillor S Riccelli

That the Committee adopts the following amended dates for the Policy and Legislation Committee Meetings for the remainder of the 2022 calendar year:

·   6th July;

·   7th September; and

·   2nd November.

CARRIED 5/0

 

OFFICER RECOMMENDATION

That the Committee adopts the following amended dates for the Policy and Legislation Committee Meetings for the remainder of the 2022 calendar year:

·    6th July;

·    7th September; and

·    2nd November.

EXECUTIVE SUMMARY

This report presents an amended meeting schedule for the Policy and Legislation Committee for the period July to December 2022 for the Policy and Legislation Committee’s endorsement.

BACKGROUND

At its Ordinary Meeting of Council 27 April 2022 (C2204/084) Council agreed to trial moving from two to one Ordinary Meetings of Council per month and subsequently adopted an alternative meeting schedule for the Ordinary Meetings of Council for the period July through to December 2022. Council will now hold one Community Access Session per month and one Ordinary Meeting of Council per month.

 

The change to meeting schedules is to assist in streamlining the City’s decision making practices and reduce both the administrative functions associated with meeting processes and the in person demands on Councillors.

 

As part of the change to meeting schedules, Council’s committee meeting schedules will also be amended, with the Finance Committee continuing to be held monthly, on the first Wednesday of each month and the Policy and Legislation Committee being held bi-monthly on the first Wednesday of each month, with other committees on the alternative month.

OFFICER COMMENT

Under its terms of reference, the Committee must meet at least six times per year. In September 2021, the terms of reference for the Committee were reviewed and endorsed by Council (C2109/201), including the addition of clause 7.1(a) which clarified that the Committee is delegated the power to schedule and endorse the dates, times and locations of the meetings held by the Committee.

 

In accordance with regulation 12 of the Local Government (Administration) Regulations 1996, if a committee meeting is open to the public or proposed to be open to the public, the local government must give public notice of the dates, times and place at which the committee meetings are to be held in the next 12 months. Once endorsed by the Committee, the meeting dates will be publicly advertised.

 

Officers are proposing that Policy and Legislation Committee (the Committee) meetings be held bi-monthly, on the first Wednesday of each month, with Council’s other committee to be held on the alternative months.

 

It is proposed that the Committee meetings for 6th July, 7th September and 2nd November 2022 be held at 1.30pm, in the Wonnerup Committee Room, at the City of Busselton Administration Building.

 

Statutory Environment

The Council of the City of Busselton has established a standing committee known as the Policy and Legislation Committee, pursuant to section 5.8 of the Local Government Act 1995.

 

The Policy and Legislation Committee is established for the purpose of assisting Council to fulfil its role under section 2.7(2)(b) of the Local Government Act 1995, namely to determine the local government’s policies and its legislative function in accordance with Division 2 of Part 3 of the Local Government Act 1995.

 

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 officer recommendation, the Committee could propose different dates or times for its meetings to be held.

CONCLUSION

Following the adoption of an amended Council meeting schedule, the Committee are being asked to endorse an amended schedule of Policy and Legislation Committee meeting dates for the period July to December 2022.

TIMELINE FOR IMPLEMENTATION OF OFFICER RECOMMENDATION

The amended meeting schedule will be advertised within one week of the committee’s endorsement.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 


10:44am               At this time, Mr Needham and Ms Wilkinson entered the meeting.

 

6.2             HOLIDAY HOMES AMENDMENT LOCAL LAW

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   Current Consolidated Holiday Homes Local Law 2012

Attachment b    Holiday Homes Amendment Local Law 2022  

 

Committee Recommendation

PL2205/452            Moved Councillor K Cox, seconded Councillor J Richards

That the Council:

1.         Commences the law-making process for the City of Busselton Holiday Homes Amendment Local Law 2022; the purpose and effect of the local law being as follows:

Purpose: To regulate the registration and management of holiday homes within the district.

Effect: To control the use of holiday homes by reducing the time within which a manager must respond to issues.

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.

CARRIED 5/0


Officer Recommendation

That the Council:

1.         Commences the law-making process for the City of Busselton Holiday Homes Amendment Local Law 2022; the purpose and effect of the local law being as follows:

Purpose: To regulate the registration and management of holiday homes within the district.

Effect: To control the use of holiday homes by reducing the time within which a manager must respond to issues.

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

In 2012, three interrelated key instruments were introduced by Council to regulate holiday homes – these included provisions in the local planning scheme, a local planning policy, and a local law. The local law has remained unchanged since 2012.

 

Throughout 2021/22 a full review of the regulatory framework covering holiday homes was conducted, resulting in several opportunities for change. On 23 March 2022, Council resolved to adopt a staged approach for proposed changes to the regulation of holiday homes. With regard to the City of Busselton Holiday Homes Local Law 2012 (Local Law), Council resolved that amendments should be presented to Council for consideration as part of Stage 2.

 

In accordance with that resolution, an amendment to the 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 Local Law was first gazetted in April 2012 and further amended in November 2012 (to address issues raised by the JSC during its scrutiny of the Local Law, relating to clauses which attempted to regulate the use of waste receptacles). It was introduced as part of a suite of changes to the holiday home regulatory framework which also included a local planning policy and local planning scheme amendments. The Local Law created an annual registration system for those properties which had received development approval. This report only relates to the Local Law.

 

The Local Law, when introduced, was the second of its type in Western Australia, and largely followed a local law introduced by the City of Fremantle. The only other WA local government known to officers to have a local law dealing with holiday homes is the City of Wanneroo who introduced a local law in 2017. 

 


As development approvals are generally granted in perpetuity, the annual registration system was seen as a way of generating ongoing management responsibility for owners, and allows the City to modify conditions of registration through an annual renewal process (although generally speaking, the conditions must be consistent with the relevant development approval).

 

The Local Law creates an ability to cancel registrations in the event of serious non-compliance. The registration process also provides the City with an ability to monitor how many properties are actively being operated as holiday homes.

 

Over time issues relating to holiday homes have arisen that may not be sufficiently addressed through the current framework. At its meeting of 9 June 2021 Council resolved to conduct a review, by proposing a number of potential changes, and to consult with the community about these changes. Consultation was carried out for a period of seven weeks between 13 August and 4 October 2021, comprising a number of community information sessions, static displays, an extensive online document library, and an online survey. 553 survey responses and a further 18 written submissions were received and each proposed change gained support from the majority of respondents.

 

The changes relevant to the Local Law (which have not already been addressed as part of Stage 1 through the updating of Conditions of Registration and introduction of a Code of Conduct) are:

(a)       Expectations around managers’ response times.

(b)       Requirements for the management of unattended dogs.

 

These changes are discussed further below under Officer Comment.

OFFICER COMMENT

Reducing Manager Response Time from 24 hours to 12 hours

The requirement for managers to respond to contact relating to a holiday home is provided through clause 3.4 of the Local Law which states:

 

“3.4 Contacting the manager

                …

(2)       The manager must respond within a reasonable time but in any event within 24 hours to any contact relating to the holiday home; …”

 

Clauses 2.3(i)(ii), 2.3(j)(ii) and 2.6(k)(ii) also supplement this requirement.

 

A revised response time of 12 hours was proposed during the consultation period because a dilemma arises around a response time that may be considered reasonable. ‘Reasonable’ may be almost immediate for a management agency with multiple staff, but this might not be the case if a sole person is appointed as manager.

 

The question of reasonableness also applies to the potential to criminalise behaviour (the time to respond to a complaint), which may be disproportionate to the purpose sought to be achieved. For example, it may not be reasonable to criminalise a slow response to a complaint about an excessive number of vehicles parked at a property. It may be considered reasonable to expect a quick response regarding an excessive number of noisy and disruptive holiday home occupants and guests during the night.

 

In instances where the 12 hour response time was not supported by respondents during the consultation period, generally it was because they preferred to see a shorter response time such as one or two hours. The nature of complaints from neighbours, alongside the feedback received during the regulatory review, indicate that neighbours want faster resolution of matters seriously impacting on their amenity and enjoyment of their property.

When the local law was first introduced, a 24 hour response time was considered reasonable and appropriate. Since then, there has been a rapid increase in the use of instantaneous communication such as smart phones and apps, allowing easier communication between parties. Requiring quicker response times to issues such as overflowing bins, barking dogs, and late night parties is seen as a proportionate response to the benefit of obtaining a holiday home approval.  

 

Given the question of ‘reasonableness’, and the overwhelming support for a 12 hour response time, the proposed Amendment Local Law operates to revise the response time from 24 hours to 12 hours.

 

Prohibiting unattended dogs at holiday homes

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

 

Currently, registration can be cancelled if there is evidence of excessive noise or other nuisances. The conditions of registration specify that nuisance can include barking dogs. Consideration was given to whether to introduce a separate clause clearly requiring that dogs must not be left unattended. However, given there is already a broad power to impose conditions under clause 2.4(4), it was considered that this was not necessary and could also potentially be addressed through policy provisions (yet to be developed), having regard to the other broad power contained in clause 2.7.

 

Updated Infringements Penalties

Penalties for breaches of the Local Law are currently set at between $150 and $400. The Act allows for maximum infringements of up to $500. Given the current penalties were set some 10 years ago, it is 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.

 

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 registration and management of holiday homes within the district.

 

Effect: To control the use of holiday homes by reducing the time within which a manager must respond to issues.

 

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

There is currently no policy guiding the application of the Local Law. However, a policy is currently being drafted and will be presented to Council when the results of the statutory consultation period for the Amendment Local Law are returned to Council.

 

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 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

Since its gazettal the registration system created under the Local Law has provided another layer of oversight to the holiday home system. However, the issue of manager response times has been recognised, during the regulatory review, as in need of reconsideration. 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 four months.

 


Policy and Legislation Committee

29

25 May 2022

6.2

Attachment a

Current Consolidated Holiday Homes Local Law 2012

 


















Policy and Legislation Committee

30

25 May 2022

6.2

Attachment b

Holiday Homes Amendment Local Law 2022

 

 


Policy and Legislation Committee                                  31                                                                      25 May 2022

10:54am               At this time Ms Wilkinson and Ms Pierson left the meeting.

 

10.55am               At this time, Mr McDowell, Ms Runco and Ms McTaggart entered the meeting.

                  

7.               General Discussion Items

 

7.1            CAT CONTROL ISSUES

Mr Paul Needham, Director Planning and Development Services, and Mr Ian McDowell, Ranger and Emergency Services Coordinator, provided an update on provisions for domestic cat containment, and discussed cat registration and trends in the impounding of registered and feral cats.

 

 

8.               Next Meeting Date

Wednesday, 22 June 2022.


9.               Closure

The meeting closed at 11:51am.

 

THESE MINUTES CONSISTING OF PAGES 1 TO 30 WERE CONFIRMED AS A TRUE AND CORRECT RECORD ON Wednesday, 22 June 2022.

 

DATE:_________________       PRESIDING MEMBER:     _________________________