Byron Shire Reserve Trust Committee Meeting
Thursday, 17 November 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.
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. Staff Reports
Corporate and Community Services
4.1 Federal Community Childrens Centre Lease.................................................................... 4
4.2 Temporary Market Licence - Leona Rickerby.............................................................. 113
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.
Staff Reports - Corporate and Community Services 4.1
Report No. 4.1 Federal Community Childrens Centre Lease
Directorate: Corporate and Community Services
Report Author: Paula Telford, Leasing and Licensing Coordinator
File No: I2016/902
Theme: Society and Culture
A twelve (12) month temporary trust licence was issued to Federal Community Children’s Centre Inc (‘the Children’s Centre’) to authorise their occupation of the land. This licence expires on 31 December 2016.
The Children’s Centre has requested a new five (5) year Trust lease at Crown minimum rent, with the Children’s Centre to continue to pay all ongoing charges, undertake certain building repairs and assist in the maintenance of the premises.
This report recommends the granting of a new five (5) year Trust Lease to the Federal Community Childrens Centre Inc.
1. That Council as the Byron Shire Reserve Trust (Federal Community Centre Reserve Trust) authorise the General Manager to enter into a five year trust lease with a one year option with Federal Community Children’s Centre Inc over Lot 89 DP755697 (known as the old School House, Federal) with following minimum conditions:
a) Minimum Crown annual rent of $472.00 (ex GST) and increased by CPI annually;
b) All minor maintenance costs to be met by the Lessee; and
c) All Lease establishment costs including registration costs are to be met by the Lessee, with the exception of the cost for the Market Rent Valuation of $1,850 (ex GST).
2. That Council note for Crown Reporting purposes the difference between the minimum Crown annual rent of $472.00 (ex GST) per annum (as increased by CPI) and the market rent of $46,500.00 (ex GST) is $46,028.00.
1 Market Rent Valuation 2016: Federal Community Childrens Centre, E2016/92052 , page 8
2 Trust Lease Federal Community Childrens Centre, E2016/92148 , page 85
Part of Crown Reserve 95471,Lot 89 DP 755697 located at 898 Binna Burra Federal NSW 2480.
Owner – State of New South Wales (Crown Land).
Reserve Trust – Federal Community Centre Reserve Trust.
Trust Manager – Byron Shire Council.
Gazetted purpose – Community Centre.
Byron LEP 2014 Zone – RU5 Village.
The proposed lease
The Federal Community Centre Reserve has previously entered into three consecutive five year Trust leases with the Federal Community Children’s Centre (‘the Children’s Centre’) expiring in December 2004, 2010 and 2015. On expiry of the Trust lease in 2015, Council entered into a temporary twelve (12) month Trust licence with the Children’s Centre to secure occupation of the land and to allow Council time to negotiate with the Crown a longer-term Trust Lease.
In a letter to Council dated December 2015, the Children’s Centre requested a new five year lease as essential in securing the premise for the continued operation of the Children’s Centre.
Proposed five (5) year lease tenure
The proposed five year Trust lease tenure is consistent with the Children’s Centre request to lease only 6% of the total land area within Lot 89 DP 755697. To let a lease for a term longer than five years would require a subdivision over Lot 89 DP 755697 at considerable cost of the Children’s Centre.
The proposed lease is considered in the public interest being to permit the Children’s Centre to continue provision of children’s services and sole provider of those services to the Federal Community. Further the Children’s Centre is a non-profit community based service funded by the NSW Department of Family and Community Services and the Department of Education. The Children’s Centre provides both pre-school and long day care service and is vital part of the Federal Community.
The proposed Trust lease is compatible with the gazetted purpose of Reserve 95471 being a Community Centre.
The proposed leased area
Prior to 1999 the whole of Lot 89 DP 755697 being an area of 9133.03 m² was managed by the Federal Community Centre Committee. The Children’s Centre expressed reluctance in taking a five year lease over the whole of Lot 89 DP 755697, instead requested a lease over 1390 m² of the land being the same area of land leased since 1 January 1999. The proposed leased area includes the premises, a storage shed, gardens and a fenced playground.
The leased premises
The Children’s Centre has contributed to improvements to the premises since 1999. Recent improvements include development consent granted on 9 February 2011 for alterations and additions to the premises to accommodate five extra children and construction of a nappy change room. New playground equipment was previously installed in 2007.
A 2014 building condition assessment report highlighted urgent building maintenance which has since been completed. Council at its cost carried out repairs to exterior cladding to stop water penetration, repaired timber window frames and mouldings, gable boards, veranda entry stairs and cleaning of gutters, removal of overhanging camphor laurels and implementation of a program of roof maintenance and cleaning.
The Children’s Centre carried out repairs to shade covers, children’s playground structures and the storage shed and removed a paved area at the rear of the building to reinstate a visual termite barrier and allow for ventilation to prevent moisture build-up.
Selection of the proposed Lessee
Council directly negotiated with the Federal Community Centre Inc on the basis the proposed fell outside the Independent Commission Against Corruption, (‘ICAC’) direct negotiation guidelines. The decision was based on the cost to Council to publically tender the letting of 5-year Trust lease over the premises far outweighed any benefit to Council in running that process. Given the restricted use of the Crown reserve and the community benefit in retaining a childcare service provided by Federal Community Children’s Centre since 1999 the cost to Council in running a public tender process far outweighed any benefit of that process.
The Federal Community Centre Incorporated is a registered charity 41 446 709 631 and registered provider under section 15, Children (Education and Care Services) National Law (NSW) provider number PR-00003493 granted 1/19/2009.
A market rent evaluation was undertaken by Valuers Australia Real Estate Advisors which determined the annual market rent for the premises is valued at $46,500 (ex GST). It has been recommended that the costs of $1,850 (ex GST) for undertaking the Market Rent Valuation, should on this occasion be borne by Council, as these costs were not identified by Council during the negotiations as a cost of establishing the lease.
The Children’s Centre as a not for profit organisation providing a childcare service to the Federal community is eligible under clause 2.2(b)(iii) of the Department of Primary Industries Catchments & Lands Policy April 2012 for a maximum rent rebate to the crown minimum value of $472 excluding GST per annum. For Crown Reporting purposes the annual value of rent rebated and reported as a subsidy is $46,028 (ex GST).
The costs for preparing the trust lease, including the registration of the lease should be borne by the tenant, with the exception on this occasion of the market rent valuation.
All minor maintenance costs of the building should be made the responsibility of the tenant.
Statutory and Policy Compliance Implications
(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.
(6D) In this Division, a reference to a "reserve trust manager" , in relation to a reserve trust established for cemetery or crematorium purposes on or after the commencement of section 73 of the Cemeteries and Crematoria Act 2013 , is a reference to the Minister administering that Act (to the extent that the Minister is responsible for managing the affairs of that reserve trust) or the trust board, corporation or administrator appointed under that section to manage the affairs of the trust.
(7) If a reserve trust is appointed as trustee of more than one reserve (or more than one part of a reserve), a reference in this Part to the reserve (or part of the reserve) in relation to the reserve trust includes a reference to any one or more of the reserves (or any one or more of the parts of the reserve) of which the reserve trust has been appointed as trustee.
(8) The Minister administering this Act is to consult the Minister administering the Cemeteries and Crematoria Act 2013 before exercising any function after the commencement of section 73 of that Act with respect to a reserve trust established for cemetery or crematorium, or related, purposes.
Staff Reports - Corporate and Community Services 4.2
Directorate: Corporate and Community Services
Report Author: Paula Telford, Leasing and Licensing Coordinator
File No: I2016/1113
Leona Rickerby has applied for a temporary licence to hold a small beachside Artisan Market on two (2) dates, being 10 December 2016 and 14 January 2017, on Crown land within the grounds of the Brunswick Heads Surf Life Saving Club Reserve 97139.
This report outlines Council’s obligation as the Byron Coast Reserve Trust Manager and recommends the Reserve Trust grant a temporary licence for the proposed for the two (2) beachside Artisan Markets.
1. That Council, as the Byron Coast Reserve Trust authorise the General Manager to issue a temporary licence to Leona Rickerby to hold two (2) beachside Artisan Markets on 10 December 2016 and 14 January 2017 on condition:
a) The Artisan Markets are conducted within the stall layout plan; and
b) Approval for the jumping castle is obtained.
2. That licence fee for Markets on Crown Reserves apply and include a one off application fee of $229.00 for both markets and two (2) licence fees of $122.00 for the two (2) markets.
Beachside Artisan Markets to be held part of Crown Reserve R97139 Byron Coast Reserve Trust
Gazetted purpose – Public Recreation
Owner – Department of Primary Industries-Crown Lands Division
Trust Manager – Byron Coast Reserve Trust
Zoned – DM - Deferred Matter
No adopted Plan of Management
Policy and Legislative Considerations
Council adopted its Policy 15/007 Sustainable Community Markets via Resolution 15-471. The Policy provides that Council may on receipt of a Temporary Market application and following assessment of that application grant a temporary market licence. The grant is conditional on the application not being for more than three consecutives terms and does not require development consent. Council must charge its adopted Market Licence fee.
Policy No 5.52 Commercial Activities on Coastal and Riparian Crown Reserves adopted by Resolution 11-100 defines a class of activities that can be carried out on Crown Reserves without a formal Reserve Trust resolution. A temporary Artisan Market is not an activity within the class of activities, therefore formal approval from the Byron Coast Reserve Trust is required.
In the absence of authority to grant a temporary market licence under Policy No 5.52 the Byron Coast Reserve Trust has authority under section 108(1) of the Crown Lands Act 1989 (NSW) to grant a temporary licence for the prescribed purpose of markets in accordance with clause 31(1)(m) of the Crown Lands Regulations 2006 (NSW).
Application for Temporary Artisan Market
Council received an application for a temporary artisan market licence from Leona Rickerby to hold a temporary artisan market called the ‘North Coast Village Market’ in the grounds of the Brunswick Surf Life Saving Club on three (3) days being 12 November, 10 December 2016 and 14 January 2017. Due to the requirement to report to the Reserve Trust, the 12 November 2016 proposed market was abandoned.
The temporary market proposal is for a small Artisan Market of approximately 20 stalls of local artisans and village collectors with entertainment provided by local folk musicians, kids’ face painting and three (3) mobile food vans on each market day. The proposal markets will operate from 8am to 3pm, with set up from 7am on each day.
Council determined the temporary artisan market to be held on land zoned ‘Deferred Matter’ does not require development consent in accordance with the Local Environmental Plan 1988. However, Council has determined the proposal for a jumping castle will require approval in accordance with s68 of the Local Government Act 1993 (NSW), and all proposed food outlets must be Council approved. Further Council requested both artisan markets must be conducted within the provided stall layout plan and waste management plan.
Council’s adopted fees and charges for temporary market licences on Crown lands is a one off $229.00 application and a licence fee of $122.00 per market, totalling $543.00 (inc GST) to hold both temporary Artisan Markets.
Statutory and Policy Compliance Implications
(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.
Clause 31 Crown Lands Regulations 2006 (NSW)
(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),
(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.