Byron Shire Reserve Trust Committee Meeting
Thursday, 4 February 2016
held at Council Chambers, Station Street, Mullumbimby
commencing at 2.00pm
Public Access relating to items on this Agenda can be made at 2pm on the day of the Meeting. Requests for public access should be made to the General Manager or Mayor no later than 12.00 midday on the day prior to the Meeting.
Acting General Manager
What is a “Conflict of Interests” - A conflict of interests can be of two types:
Pecuniary - an interest that a person has in a matter because of a reasonable likelihood or expectation of appreciable financial gain or loss to the person or another person with whom the person is associated.
Non-pecuniary – a private or personal interest that a Council official has that does not amount to a pecuniary interest as defined in the Local Government Act (eg. A friendship, membership of an association, society or trade union or involvement or interest in an activity and may include an interest of a financial nature).
Remoteness – a person does not have a pecuniary interest in a matter if the interest is so remote or insignificant that it could not reasonably be regarded as likely to influence any decision the person might make in relation to a matter or if the interest is of a kind specified in Section 448 of the Local Government Act.
Who has a Pecuniary Interest? - a person has a pecuniary interest in a matter if the pecuniary interest is the interest of the person, or another person with whom the person is associated (see below).
Relatives, Partners - a person is taken to have a pecuniary interest in a matter if:
§ The person’s spouse or de facto partner or a relative of the person has a pecuniary interest in the matter, or
§ The person, or a nominee, partners or employer of the person, is a member of a company or other body that has a pecuniary interest in the matter.
N.B. “Relative”, in relation to a person means any of the following:
(a) the parent, grandparent, brother, sister, uncle, aunt, nephew, niece, lineal descends or adopted child of the person or of the person’s spouse;
(b) the spouse or de facto partners of the person or of a person referred to in paragraph (a)
No Interest in the Matter - however, a person is not taken to have a pecuniary interest in a matter:
§ If the person is unaware of the relevant pecuniary interest of the spouse, de facto partner, relative or company or other body, or
§ Just because the person is a member of, or is employed by, the Council.
§ Just because the person is a member of, or a delegate of the Council to, a company or other body that has a pecuniary interest in the matter provided that the person has no beneficial interest in any shares of the company or body.
Disclosure and participation in meetings
§ A Councillor or a member of a Council Committee who has a pecuniary interest in any matter with which the Council is concerned and who is present at a meeting of the Council or Committee at which the matter is being considered must disclose the nature of the interest to the meeting as soon as practicable.
§ The Councillor or member must not be present at, or in sight of, the meeting of the Council or Committee:
(a) at any time during which the matter is being considered or discussed by the Council or Committee, or
(b) at any time during which the Council or Committee is voting on any question in relation to the matter.
No Knowledge - a person does not breach this Clause if the person did not know and could not reasonably be expected to have known that the matter under consideration at the meeting was a matter in which he or she had a pecuniary interest.
Participation in Meetings Despite Pecuniary Interest (S 452 Act)
A Councillor is not prevented from taking part in the consideration or discussion of, or from voting on, any of the matters/questions detailed in Section 452 of the Local Government Act.
Non-pecuniary Interests - Must be disclosed in meetings.
There are a broad range of options available for managing conflicts & the option chosen will depend on an assessment of the circumstances of the matter, the nature of the interest and the significance of the issue being dealt with. Non-pecuniary conflicts of interests must be dealt with in at least one of the following ways:
§ It may be appropriate that no action be taken where the potential for conflict is minimal. However, Councillors should consider providing an explanation of why they consider a conflict does not exist.
§ Limit involvement if practical (eg. Participate in discussion but not in decision making or vice-versa). Care needs to be taken when exercising this option.
§ Remove the source of the conflict (eg. Relinquishing or divesting the personal interest that creates the conflict)
§ Have no involvement by absenting yourself from and not taking part in any debate or voting on the issue as if the provisions in S451 of the Local Government Act apply (particularly if you have a significant non-pecuniary interest)
Clause 375A of the Local Government Act 1993 – Recording of voting on planning matters
(1) In this section, planning decision means a decision made in the exercise of a function of a council under the Environmental Planning and Assessment Act 1979:
(a) including a decision relating to a development application, an environmental planning instrument, a development control plan or a development contribution plan under that Act, but
(b) not including the making of an order under Division 2A of Part 6 of that Act.
(2) The general manager is required to keep a register containing, for each planning decision made at a meeting of the council or a council committee, the names of the councillors who supported the decision and the names of any councillors who opposed (or are taken to have opposed) the decision.
(3) For the purpose of maintaining the register, a division is required to be called whenever a motion for a planning decision is put at a meeting of the council or a council committee.
(4) Each decision recorded in the register is to be described in the register or identified in a manner that enables the description to be obtained from another publicly available document, and is to include the information required by the regulations.
(5) This section extends to a meeting that is closed to the public.
Byron Shire Reserve Trust Committee
1. Public Access
4. Notices of Motion and Rescission
4.1 Butler Street Reserve - Paid Parking and Market Licenses............................................. 4
4.2 Butler Street Reserve Toilets ........................................................................................... 6
5. Staff Reports
Corporate and Community Services
5.1 Market Licence Agreements - Requests for Proposal 2016............................................. 7
5.2 Reserve Trust Manager - Consent to lodge Development Application.......................... 12
Councillors are encouraged to ask questions regarding any item on the business paper to the appropriate Director or Executive Manager prior to the meeting. Any suggested amendments to the recommendations should be provided to the Administration section prior to the meeting to allow the changes to be typed and presented on the overhead projector at the meeting.
Notices of Motion and Rescission 4.1
Notice of Rescission Motion No. 4.1 Butler Street Reserve - Paid Parking and Market Licenses
File No: I2015/1583
We move that Council rescind Resolution No. 15-670 from its Byron Shire Reserve Trust Committee meeting held on 10 December 2015 which reads as follows:
1. That Council call for tenders to establish a long-term Community Market Licence in Byron Bay (currently at the Butler Street Reserve) until such time as an alternate site has been identified.
2. That Council delegate the General Manager to grant a 6-month temporary Community Market Licence, under Section 108 of the Crown Lands Act 1989, commencing 1 April 2016 to the Byron Community Association Incorporated for the purpose of conducting a monthly Community Market at Butler Street Reserve.
3. That the Reserve Trust bring to Council the request to delegate the General Manager to approach the Belongil fields owners and the market operators to discuss the option of sighting the monthly markets on a temporary basis at that site.
If successful we intend to move:
1. Delegate the General Manager to grant a 12-month temporary Community Market Licence, under Section 108 of the Crown Lands Act 1989, commencing 1 April 2016 to the Byron Community Association Incorporated for the purpose of conducting a monthly Community Market at Butler Street Reserve.
2. Apply the market licence fees, to the Temporary Market Licence, in accordance with Council’s adopted fees and charges.
1. The Reserve Trust Committee operates under Council’s Code of Meeting Practice which states (Schedule B.2 on Page 14) that the Committee has delegated authority to determine all matters relating to the Council management of Crown Reserves, where Council is the Reserve Trust Manager, and the Council owned and controlled caravan parks, other than those items a council cannot delegate as listed in section 377(1) of the Local Government Act.
RTC therefore has no jurisdiction to carry out Part 3 of the Resolution. It is deleted from the Replacement Motion.
2. Schedule B.5 on Page 14 of the Code states that the Committee can determine rescission motions where the resolution being rescinded arose from a Byron Shire Reserve Trust Committee Meeting.
Signed: Cr Duncan Dey
Cr Paul Spooner
Cr Simon Richardson
Comments from Manager Governance Services, Trish Kirkland:
Staff have prepared reports for the 4 February 2016 Ordinary Meeting and Reserve Trust Meeting Agendas that set out the implementation process and timetable for the new Sustainable Community Market Policy and the establishment of long-term (5 year) Market Licences via an appropriate competitive process.
Notices of Motion 4.2
File No: I2016/16
1. That Council receive a report on the available funds for the Butler Street Crown Reserve
2. The upgrading of the amenities block be a high priority
3. That an OH&S report be provided on the management of the site during Market Days in particular the use of power supplies.
Councillor’s Background Notes:
The Butler Street Reserve has been sadly neglected over the past years, with the Amenities Block barely usable, with Occupational Health and Safety issues highlighted in relation to power supplies, and the general deterioration of the whole site
Council receives very little income on this site currently, but has the responsibility overall of the maintenance and upgrading of the facilities.
Definition of the project/task:
All outstanding resolutions to be identified by staff and listed for a rescission.
Signed: Cr Diane Woods
Management Comments by Michael Matthews, Acting Director Infrastructure Services
(Management Comments must not include formatted recommendations – resolution 11-979)
Clarification of project/task:
The purpose of the report is to:
· Define available funds for the Butler Street Crown Reserve.
· Provide recommendations on the upgrade of the amenities block.
· Provide clear expectations as to safe and appropriate operational use of the reserves infrastructure and utilities, that ensures market staff and general public safety within the reserve, during market and other days.
Director responsible for task implementation:
Director Infrastructure Services
Relationship to, priority of, and impact on other projects/tasks:
Financial and Resource Implications:
Legal and Policy Implications:
Staff Reports - Corporate and Community Services 5.1
Report No. 5.1 Market Licence Agreements - Requests for Proposal 2016
Directorate: Corporate and Community Services
Report Author: Paula Telford, Leasing and Licensing Coordinator
Trish Kirkland, Manager Governance Services
File No: I2016/10
Theme: Society and Culture
Current Temporary Market Licences to operate community markets at Byron Bay, Bangalow, Brunswick Heads and Mullumbimby and a farmers and artisan market at Byron Bay on Crown Reserves managed by Council will expire on or before 31 March 2016.
The Sustainable Community Markets Policy 15/007 requires that all future Market Licence Agreements be awarded by an open and competitive process.
Council will publically advertise a Request for Proposal to grant new five year market licences to operate community, farmers, and artisan markets on Crown Reserves managed by Council.
To ensure existing Market Licences holders are given a minimum of 6-months notice to end their current market operations, as required by the Sustainable Community Markets Policy 15/007, this report recommends granting new Temporary Licences to the existing Market Licence holders for a further seven months to include the period 1 April 2016 to 30 November 2016.
That the Byron Shire Reserve Trust:
1. Note that preparations have commenced, as set out in this report, to establish long-term Market Licence Agreements via a competitive process in accord with the new Sustainable Community Markets Policy 15/007.
2. Delegate to the General Manager the authority to grant 8-month temporary Market Licences, under Section 108 of the Crown Lands Act 1989, commencing 1 April 2016 to the existing temporary market licence holders to ensure continuity of market operations in Byron Shire until the competitive process for long-term market licences is finalised.
3. Apply the market licence fees as determined in the Council’s adopted fees and charges, to the Temporary Market Licence.
The current Temporary Market Licence Agreements granted to operators of community markets, farmers markets, and artisan market on Reserve Trust managed lands will expire on 31 March 2016.
The current Temporary Licences, issued under s108 of the Crown Lands Act 1989 (NSW) permitted the following licensees to operate:
a) up to 12 community markets in any 12 month period for:
i. Byron Community Markets at Reserve No 88993, Butler Street Byron Bay, licensed to Byron Bay Community Association Incorporated;
ii. Brunswick Community Markets at Reserve No 82999 and 80349 being Brunswick Heads and Terrace Reserves, licensed to the Brunswick Valley Woodchop & Entertainment Committee Incorporated; and
iii. Mullumbimby Community Markets at Reserve No 31910 being Mullumbimby Reserve and licensed to the Brunswick Valley Historical Society Incorporated.
b) up to 52 farmers markets in any 12 month period for:
i. Byron Farmers Markets at Reserve No 88993, Butler Street Byron Bay, licensed to Bryon Farmers Markets Incorporated.
c) At total of 4 artisan markets between 11 July 2015 to 28 March 2016 for:
i. Beachside Artisan Market at Reserve 82000, Main Beach, licensed to Byron Bay Community Association Incorporated
New long-term Market Licence Agreements
The Sustainable Community Markets Policy 15/007 adopted by Council on 17 August 2015 requires that all future Market Licence Agreements must be awarded by an open and competitive process.
Council is proposing to publically advertise a Request for Proposal seeking offers for new five year Market Licences.
The Request for Proposal document will detail the minimum criteria to apply for assessment of any offers received. The minimum criteria applied will be in accordance with clause 3.63(b) of the Sustainable Community Markets Policy.
Notice to existing licensees
Clause 3.2(a) of the Sustainable Community Markets Policy 15/007 requires Council to provide at least six months notice to exiting markets licensees. As the proposed process will take in excess of 6 months to complete, as set out in the Timetable below, Council is in a position to provide that notice without any negative impacts on the proposed timetable.
To ensure existing licensees are given adequate notice of Council’s intention to issue new five year Market Licence Agreements to operate community, farmers and artisan markets on Reserve Trust managed lands, Council is proposing to:
a) grant new Temporary Market Licence Agreements to existing licence holders for a further seven months to include the period 1 April 2016 to 30 November 2016, and
b) provide the required notice to all existing Market Licence Agreement holders that their licenses to operate markets will end on 30 November 2016.
Sustainable Community Markets Policy 15/007 provides for temporary licences to be granted, however, for not more than 3 x 1 year consecutive terms. The current Market Managers have had many successive temporary market licence agreements whilst the new Policy was developed and endorsed. Therefore, granting a further temporary licence to existing Market Managers for a 7 month, as recommended above, will require a resolution of Council.
Prior to commencing the Request for Proposal the Reserve Trust is required to consult with the NSW Department of Primary Industries – Land to obtain in-principle support for the 5-year Market License proposals. Council, as the Reserve Trust Manager, wrote to the Department on 5 January 2016 but at the time of preparing this report had not yet received supporting confirmation.
Table 1 – Estimated Timetable for Request for Proposal to establish 5-year Market Licenses
5 January 2016
Request in-principle support from NSW Trade & Investment Crown lands division to initiate new five year Community Market Licence Agreements.
4 February 2016
Reserve Trust Committee grants new Temporary Licenses to existing license holders until 30 November 2016
28 February 2016
Prepare and execute new Temporary Licenses for existing licence holders
31 March 2016
Receive from Crown Lands in-principle support to offer 5-year Market Licences, under Section 102 Crown Lands Act.
1 April 2016
Formalise written notice, under the Policy, to all existing Market Licence holders that their licences will end on 30 November 2016.
30 April 2016
Finalise preparation of the Request for Proposal documentation, including new licence agreements, detailed market location and asset impact data, and development appropriate social impact value measures and KPI reporting requirements under the new agreements to support the new Policy objectives.
11 May 2016
Publically advertise the Request for Proposal.
30 June 2016
Close of Request for Proposal advertisement.
1 July 2016 to
31 July 2016
Panel evaluation of offers received in response to the Request for Proposal
3 August 2016
Receive Crown Lands support to grant 5 year licences to finalise for Agenda production of report to Reserve Trust Committee
3 August 2016
Finalise report for Reserve Trust Committee Agenda
25 August 2016
Reserve Trust Committee Meeting to consider granting the new 5-year Market Licences to the preferred proposals, subject to obtaining any necessary development consents and consent from Minister Crown Lands
30 October 2016
Allowance for any necessary development consents and/or associated approvals to be secured by the successful proponents.
31 October 2016
Provide final advice to current licence holders of the outcomes and finalisation of current market operations by 30 November 2016
30 November 2016
Finalise execution of agreements, and secure final Minister Crown Lands consent to the 5-year licence agreements.
1 December 2016
Commencement of all new 5-year Community Market Licence Agreements.
Licence rental fees will be in accordance with Council’s adopted fees and charges.
Statutory and Policy Compliance Implications
Relevant statutory provisions with the Crown Lands Act 1989 (NSW) includes:
Section 102 Consent of Minister to sale, lease, easement, licence or mortgage
(1) A reserve trust may not sell, lease or mortgage land, or grant an easement or a licence (except a temporary licence) in respect of land, comprising the whole or any part of the reserve unless:
(a) the trust has decided that it is desirable to do so on the terms and conditions specified in the decision, and
(d) the Minister has consented in writing to the proposal.
(3) The Minister’s consent may relate to the whole or part only of the land with which the application is concerned.
(4) If the application for consent proposes a sale, lease, easement or licence, the Minister’s consent:
(a) may be general, authorising the proposal subject to such conditions, restrictions, reservations and covenants, and in such manner and within such time, as the Minister thinks desirable, or
(b) may be specific, approving of a particular contract of sale, lease or licence.
(6) In giving consent, the Minister may:
(a) vary the terms and conditions to which the sale, lease, easement, licence or mortgage is to be subject, and
(b) impose such other terms and conditions as the Minister thinks desirable.
(7) The Minister may, at any time, wholly or partly withdraw the consent or vary its terms, but only if to do so would not prejudice the rights of third parties.
Section 108 Temporary licences
(1) A reserve trust may, in respect of the whole or any part of a reserve, grant temporary licences for grazing or any other prescribed purpose.
(2) A temporary licence may be granted subject to conditions and is also subject to such conditions as may be prescribed.
(4) A temporary licence ceases to have effect on the expiration of the prescribed period after it is granted unless it is revoked sooner or is granted for a shorter period.
Relevant statutory clauses with the Crown Lands Regulations 2006 (NSW) include:
Clause 31 Temporary licences
(1) For the purposes of section 108 (1) of the Act, in addition to grazing, the purposes for which a temporary licence may be granted are as follows:
(a) access through a reserve,
(c) camping using a tent, caravan or otherwise,
(e) emergency occupation,
(g) equestrian events,
(i) filming (within the meaning of the Local Government Act 1993 (NSW),
(k) hiring of equipment,
(l) holiday accommodation,
(o) military exercises,
(p) mooring of boats to wharves or other structures,
(s) sporting and organised recreational activities,
(t) stabling of horses,
(2) For the purposes of section 108 (2) of the Act, in addition to any other condition subject to which a temporary licence is granted, the licence is subject to the condition that the relationship of landlord and tenant is not created between the parties.
(3) For the purposes of section 108 (4) of the Act, the prescribed period for the expiration of a temporary licence is one year following the date on which it is granted.
Staff Reports - Infrastructure Services 5.2
Report No. 5.2 Reserve Trust Manager - Consent to lodge Development Application
Directorate: Infrastructure Services
Report Author: Pattie Ruck, Open Space Facilities Coordinator
File No: I2016/17
Theme: Community Infrastructure
Open Space and Recreation
The Byron Bay Swim Club have submitted a Development Application for a new storage shed at the Byron Bay Swimming Pool.
The Reserve Trust consent is required to lodge the Development Application. This report recommends the Reserve Trust Committee consent to the Development Application and authorise the General Manager to seek owners consent from Crown Lands.
That the Byron Shire Reserve Trust consent to:
a) the Development Application for a new storage shed at the Byron Bay Swimming Pool, and
b) authorise the General Manager to make application to Crown Lands for their consent, as owners, to lodge the Development Application in the form provided at Attachment E2016/3987.
1 Email from Byron Swim Club, E2016/3998 , page 16
2 Byron Swim Club Slab for Shed at Byron Pool, E2016/3993 , page 17
3 Plans for Byron Swim Club Shed at Byron Swimming Pool, E2016/3991 , page 20
4 Approval from Fishheads for Byron Swimming Club Shed at Byron Swimming Pool, E2016/3989 , page 24
5 Statement of Environmental Effects for Byron Swimming Club new shed at Byron Swimming Pool, E2016/3988 , page 25
6 Development Application Byron Swimming Club for shed at Byron Swimming Pool, E2016/3987 , page 29
Reserve 82000 – Part Lot 5 DP 827049 and Part Lot 4 DP 827049 and Part Crown Reserve R82000 and Part Lot 10 DP 1049827 known as Byron Bay Swimming Pool
Purpose – Public Recreation
Owner – Department of Lands (Crown Land)
Trustee – Byron Coast Reserve Trust
Trust Manager – Byron Shire Council – Reserve Trust Committee
Plan of Management – no (Operational Land)
Originally this proposal has been handled by the Manager of Governance, but due to the restructure the remaining steps required have been passed onto Open Space to complete this proposal. As outlined by Governance on 17 December 2015, #E2015/81614, there are some more steps to complete in order to support this proposal from Byron Bay Swim Club.
At the time, staff provided in principal support to the proposal subject to the following:
· The Swim Club pay for the cost of constructing the storage shed
· Approval from Fishheads (as the leaseholder – tenant)
· Consent from the land owner - Reserve Trust, Council, and Crown Lands
· All necessary approvals are obtained by the Swim Club to construct the shed
· All necessary consents and approvals are obtained before any works commence
· The Swim Club accept that the shed may have to be demolished at some time in the future, depending on the outcome of the land rationalisation negotiations with Crown Lands for the site.
Fishheads have given their approval to the proposal and the Swim Club are now seeking owner’s consent to lodge the Development Application. To this end they have submitted a development application, statement of environmental effects, and structural engineering drawings as attached in Annexure 1.
The next steps are to report the matter to the Reserve Trust to establish their consent to the lodgement of the development application, and if it is supported to then seek owner’s consent from Crown Lands.
Any request for owner’s consent involving Crown Reserves must be accompanied by a statement of support and clear authorisation to make an application for owner’s consent from the Reserve Trust Manager.
This report recommends that the Reserve Trust Committee, as the Byron Coast Reserve Trust Manager of Crown Reserve 82000:
a) support the Development Application for a new storage shed at the Byron Bay Swimming Pool; and
b) authorise the General Manager to make application to Crown Lands for their consent, as owners, to lodge the Development Application in the form provided at Attachment E2016/3987.
There is a fee of approximately $70 payable to the LPMA to make an application for their consent, as owner, to the Development Application. This fee will be funded from Byron Memorial Pool budget.
Statutory and Policy Compliance Implications
Crown Lands Act 1989 No 6
92 Reserve trusts
(1) The Minister may, by notification in the Gazette, establish and name a reserve trust and appoint it as trustee of any one or more specified reserves or any one or more parts of a reserve.
(2) A reserve trust established under subsection (1) is constituted by this Act as a corporation having as its corporate name the name assigned to the trust in the notification of its establishment.
(3) The Minister may, by notification in the Gazette:
(a) dissolve a reserve trust, or
(b) alter the corporate name of a reserve trust, or
(c) revoke the appointment of the reserve trust as trustee of any one or more specified reserves or any one or more parts of a reserve.
(4) A reserve trust has the functions conferred on it by or under this Act.
(5) A reserve trust is charged with the care, control and management of any reserve (or any part of a reserve) of which it is appointed trustee.
(6) The affairs of a reserve trust are to be managed:
(a) by the Minister, or
(b) if a trust board is appointed under section 93—by the trust board, or
(c) if a corporation is appointed under section 95—by the corporation, or
(d) if an administrator is appointed under section 117—by the administrator.
(6A) In this Division, a reference to a reserve trust manager is a reference to the Minister (to the extent that the Minister is responsible for managing the affairs of a reserve trust), or any such trust board, corporation or administrator.
(6B) There can be more than one reserve trust manager for a reserve trust with the function of managing the affairs of the reserve trust allocated between them by the Minister in accordance with the following provisions:
(a) The Minister can allocate the exercise of functions in respect of different aspects of the affairs of the reserve trust or different parts of the reserve to different reserve trust managers, as specified in the allocation or as determined by the Minister, with those functions to be exercised in accordance with such arrangements (if any) as may be determined by the Minister.
(b) The Minister is the reserve trust manager for any aspect of the affairs of a reserve trust or any part of the reserve not allocated to another reserve trust manager and is accordingly allocated the function of managing the affairs of the reserve trust in respect of any such unallocated aspects of those affairs or unallocated parts of the reserve.
(c) A reserve trust manager has the function of managing the affairs of the reserve trust only to the extent of the allocated functions and is, for the purposes of this or any other Act or law, the reserve trust manager to that extent only.
Environmental Planning and Assessment Act 1979 No 203
(1) A person may, subject to the regulations, apply to a consent authority for consent to carry out development.
(9) The regulations may specify other things that are required to be submitted with a development application.
Environmental Planning and Assessment Regulation 2000
49. Who can make a development application?
(1) A development application may be made:
(a) by the owner of the land to which the development application relates, or
(b) by any other person, with the consent in writing of the owner of that land.
(2) Subclause (1) (b) does not require the consent in writing of the owner of the land for a development application made by a public authority if, before making the application, the public authority serves a copy of the application on the owner.
(3) Despite subclause (1), a development application made by a lessee of Crown land may only be made with the consent in writing given by or on behalf of the Crown.