Byron Shire Reserve Trust Committee Meeting
Thursday, 15 December 2016
held at Council Chambers, Station Street, Mullumbimby
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 North Coast Community Housing Lease.......................................................................... 4
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 North Coast Community Housing Lease
Directorate: Corporate and Community Services
Report Author: Paula Telford, Leasing and Licensing Coordinator
File No: I2016/996
Theme: Society and Culture
1. As the Ewingsdale Reserve Trust, authorise the General Manager to enter into a ten (10) year Trust lease with The North Coast Community Housing Company Ltd over Reserve 97216, Lot 377 DP 47409, 34 William Flick Lane Ewingsdale (known as the Old Schoolmaster’s Cottage) with the following minimum conditions:
a) Subsided rent to 50% of the median market rent for Byron Bay being $260 plus GST per week and increased annually by CPI all groups Australia;
b) The Lessee is permitted to rent the Premises under a NSW Residential Lease; and
c) All minor maintenance costs to be met by the Lessee; and
d) All establishment costs including registration costs are met by the Lessee.
2. As the Ewingsdale Reserve Trust, note for Crown Reporting purposes the difference between the 50% subsidy in rent of $13,520 plus GST per annum (as increased by CPI).
3. As the Ewingsdale Reserve Trust, note that The North Coast Community Housing Company Ltd is proposing to spend approximately $35,000 to bring the Premises up to an acceptable dwelling standard.
Crown Reserve 97213, Lot 377 DP 47409 located at 34 William Flick Lane Ewingsdale NSW 2481.
Reserve Trust – Ewingsdale Reserve Trust.
Trust Manager – Byron Shire Council.
Gazetted – 6 April 1984.
Gazetted purpose – Community purpose - public recreation.
Bryon LEP 2014 Zone – RU1 Primary Production.
Description of the proposed leased area
The proposed leased area is the whole of Reserve 97213; Lot 377 DP 47409 (‘the Premises’). The Premises is a listed heritage site being a former school site built in the early 1900s and is significant for its cultural landscape including an avenue of heritage listed 1930s fig trees. The old schoolmaster cottage is a four bedroom weatherboard dwelling with metal roof, two unattached storage sheds and two water tanks. Entry to the Premise is from William Flick Lane via a gravel drive way.
History of use
The Ewingsdale Reserve Trust has previously leased the Premises for the purpose of residential housing to the Byron Housing Support Project for the period 1992 to mid 2014. The Premises stands currently vacant.
Proposed new lease
In January 2016 Council publically called for submissions via a Request for Proposal to lease the Premise for a period of ten (10) years. The North Coast Community Housing Company (‘NCCH’) in partnership with the Mullumbimby and District Neighbourhood Centre Inc (‘MDNC’) provided the preferred submission.
The proposal by NCCH and MDNC is to provide transitional housing for women and children who are leaving or have left domestic violence. Tenancy and property management services will be managed by NCCH with all case management and counselling provided by MDNC. NCCH is the largest registered provider of community housing on the North Coast of NSW with an annual budget over $10million. MDNC has over 30 years experience in delivering community services and community development in the Byron Shire employing professionals and other skilled staff. MDNC operates a specialist service for women and families affected by domestic violence in the Shire.
The proposed ten (10) year Trust lease is offered in accordance with the term offered in the public request for proposal. The proposed Trust lease will be registered as requested by NCCH.
The proposed Trust lease is in the public interest being to provide safe accommodation to persons leaving domestic violence. This purpose aligns with the NSW State Plan priority of reducing domestic violence by providing women and children with safe accommodation and aligns with the National Plan to Reduce Violence against Women and Their Children by providing temporary accommodation to persons escaping domestic violence.
The proposed Trust lease is in the Reserve Trusts’ interest in reducing expenditure on maintenance and general upkeep of the Premises. NCCH is proposing to spend approximately $35,000 to bring the Premises up to an acceptable dwelling standard. Further occupation of the Premise should reduce the risk harm to the Premise from vandalism.
Purpose of the Reserve and lease
· Primary purpose:
The gazetted purpose of Reserve 97213 is community purpose – public recreation. Council sought advice from the Crown on 9 April 2013 on an interpretation of the meaning of ‘community purpose’ and was provided the following:
“Crown Lands consider the allowable uses for Crown Reserves for Community Purposes to
include the use and occupation of the reserve for a community service, facility and or use/s
by a recognised charitable or non profit organisation”.
Both NCCH and MDNC are registered charities (97002685761 and 88628199635). The proposed purpose of the ten (10) year lease is to occupy the Premises as an office and community housing for women and children escaping domestic violence. The provision of a community service is therefore compatible with the gazetted purpose of the Reserve.
· Secondary purpose:
Alternatively the proposed purpose of the Trust lease as an office and community housing is a valid secondary interest that is compatible with the use of the Reserve under s34AA of the Crown Lands Act 1989 (NSW) based on the following:
a) The proposed Trust lease is over the whole of Reserve 97213. The secondary interest in using the Reserve as an office and community housing extends only over the building known as the ‘old school masters cottage’ and immediate surrounding land. Although the remainder of the Reserve will be under exclusive possession to NCCH, NCCH is obligated to maintain and use the remainder of the Reserve in a way that preserves the land for future public community and recreation purposes.
b) The proposed lease is for a ten (10) year term. The lease will permit temporary accommodation to one family at any one time to reside at the Premises under a residential tenancy arrangement. NCCH is an experienced property management service to effectively manage the premises and MDNC is an experienced case management and counselling serviced for tenants.
c) The proposed lease will have minimal harm on the Reserve. Currently the Premises is subject to deterioration, overgrown vegetation and at risk of vandalism and other anti-social activities. The propose Trust lease and secondary interest will ensure the Premise is occupied and the land preserved for current and future uses.
d) The premises is currently vacant and requires the Reserve Trust to expend funds on grounds maintenance and repairs to the building when needed. It is in the public interest to have the Premises maintained under a lease arrangement.
e) Consideration of the geographical context of the Reserve, the Premise is geographically located on the outer limits of to the township of Ewingsdale and is not currently used for other permanent community or recreational purposes. The environmental context, the Premise is a heritage listed property having cultural significance to both the built and natural environments. The social context, there is a social need in the Shire for temporary accommodation for women and children escaping domestic violence with a reported a 32.7% increase in domestic violence during 2012 to 2014.
f) The proposed purpose of the Trust lease supports the social need for community housing in the Byron Shire.
Improvements and maintenance of the Premises
A building condition report on the old schoolmaster’s cottage was commissioned in 2013. The report determined the building was in fair condition for its age and history of maintenance. Council at its own cost has carried out approximately $36,800 in works that included upgrades to smoke alarms, an asbestos report and pest inspection, upgrade to locks, repairs to the roof and guttering and installation of gutter guards, replacement of the front fence and gate and veranda steps, replacement of downpipes, fascia boards, extensive vegetation clearing, repairs and cleaning of water tanks, sanding, partial replacement and polishing of floorboards, repairs to bathroom wall and replacement and repairs to broken windows. Council continues to maintain the grounds at its own cost.
The submission by NCCH and MDNC proposes to refurbish the interior of the dwelling and contribute to the landscaping of the Premises at a proposed cost of $38,000. Council has determined no development applicant is required to use the Premise as a residential dwelling and NCCH has determined not to construct a driveway as proposed given the historical listing of the Premises.
Notification of lease to Native Title Applicants
Lot 377 DP 47409 is subject to a Native Title application. Council consulted with NTS Corp on 13 September 2016 providing at least 28 days to comment on the proposed ten (10) year trust lease. No comments were received by Council.
The Request for Proposal required the submitter to state the value of weekly rent prepared to pay under the proposed Trust lease. NCCH and MDNC stated a rental value of $260.00 (ex GST) weekly. The rental value was determined at 50% of the median rent in Byron Bay Sept-Dec 2015 being $520 (ex GST) per week. The 50% reduction in median rent was justified on the basis both organisations are not-for-profit and the community benefit of the use of the building. The annual value of rent to be subsidised is $13,520 (ex GST) for Crown Reporting purposes.
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.
s34AA Secondary interests in Crown reserves
(1) The power of the Minister under this Part to grant a lease, licence or permit in respect of, or an easement or right-of-way over, Crown land is not limited by the land being a Crown reserve or by the reserved purpose, except as provided by this section.
(2) A lease, licence, permit, easement or right-of-way (a secondary interest) cannot be granted unless the Minister is of the opinion that the use or occupation of the Crown reserve pursuant to the secondary interest would be in the public interest and would not be likely to materially harm its use or occupation for the reserved purpose.
(3) Without limitation, the following considerations are relevant to the question of whether the use or occupation of a Crown reserve pursuant to a secondary interest would not be likely to materially harm its use or occupation for the reserved purpose:
(a) the proportion of the area of the Crown reserve that may be affected by the secondary interest,
(b) if the activities to be conducted pursuant to the secondary interest will be intermittent, the frequency and duration of the impacts of those activities,
( (c) the degree of permanence of likely harm and in particular whether that harm is
(d) the current condition of the Crown reserve,
(e) the geographical, environmental and social context of the Crown reserve,
(f) such other considerations as may be prescribed by the regulations.
(4) For the avoidance of doubt:
(a) the purpose for which a secondary interest is granted need not be a public purpose and need not be ancillary or incidental to the reserved purpose, and
(b) the fact that the use and occupation of the Crown reserve pursuant to the secondary interest may be inconsistent or incompatible with the reserved purpose does not of itself mean that its use or occupation pursuant to the secondary interest will materially harm its use or occupation for the reserved purpose, and
(c) the fact that the Crown reserve may be used or occupied for the grazing of animals pursuant to the secondary interest does not of itself mean that that use or occupation will materially harm its use or occupation for the reserved purpose of public recreation or of future public requirements.
(5) If a secondary interest has not been validly granted because of this section, the Minister can validate the grant of the secondary interest by making such changes to the purpose for which the secondary interest was granted, or to the terms and conditions on which it was granted, as may be necessary to ensure that the secondary interest is valid.
(6) When a secondary interest is validated under this section:
(a) the secondary interest is taken to have been validly granted from the date of original grant, and
(b) the use and occupation of Crown land in accordance with the secondary interest prior to its validation under this section is taken to be and always to have been valid.
(7) In this section, grant includes purported grant.