Notice of Meeting

 

 

 

 

 

bsc_logo_150dpi_rgb

 

 

 

Audit, Risk and Improvement Advisory Committee Meeting

 

 

An Audit, Risk and Improvement Advisory Committee Meeting of Byron Shire Council will be held as follows:

 

Venue

Conference Room, Station Street, Mullumbimby

Date

Thursday, 17 August 2017

Time

11.30am

 

 

 

 

 

 

 

 

Mark Arnold

Director Corporate and Community Services                                                                  I2017/1099

                                                                                                                                    Distributed 11/08/17

 

 


CONFLICT OF INTERESTS

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)

RECORDING OF VOTING ON PLANNING MATTERS

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 COUNCIL

Audit, Risk and Improvement Advisory Committee Meeting

 

 

BUSINESS OF MEETING

 

1.    Apologies

2.    Declarations of Interest – Pecuniary and Non-Pecuniary

3.    Adoption of Minutes from Previous Meetings

3.1       Internal Audit Advisory Committee Meeting held on 18 May 2017

4.    Staff Reports

Corporate and Community Services

4.1       Internal audit service provider introduction ...................................................................... 4

4.2       Audit, Risk and Improvement Committee - overview ...................................................... 6

4.3       Summary of Internal Audit Program 2013 - 2017 .......................................................... 19

4.4       2017 Interim Audit Management Letter........................................................................... 24

4.5       Costings associated with Land and Environment Court proceedings Byron Shire Council ats Butler Street Community Network Inc. .................................................................................... 27   

 

 


BYRON SHIRE COUNCIL

Staff Reports - Corporate and Community Services                                            4.1

 

 

Staff Reports - Corporate and Community Services

 

Report No. 4.1             Internal audit service provider introduction

Directorate:                 Corporate and Community Services

Report Author:           Jessica Orr, Project Manager - Special Projects

File No:                        I2017/1037

Theme:                         Corporate Management

                                      Governance Services

 

 

Summary:

 

At Council’s Ordinary meeting on 22 June 2017, Council resolved (17-252) to appoint O’Connor Marsden and Associates (OCM) as the incoming internal audit, risk and improvement service provider for the four year contract period 2017 – 2021.

 

This report tables an introductory presentation from OCM outlining background information on the company, its services and in particular the approach OCM proposes to take in delivering internal audit services to the committee and Council as per the contract (Contract ref 2017-0004).

  

 

RECOMMENDATION:

That the Committee note the introductory presentation and welcome O’Connor Marsden and Associates as Council’s internal audit, risk and improvement services provider for the four year contract period.

 

 

Attachments:

 

1        Confidential - Byron Shire Council Introduction - presentation from OCM, E2017/79654  

 

 


 

Report

 

At Council’s Ordinary meeting on 22 June 2017, Council resolved (17-252) to appoint O’Connor Marsden and Associates (OCM) as the incoming internal audit, risk and improvement service provider for the four year contract period 2017 – 2021.

 

OCM offers extensive experience in the fields of internal audit, probity audit, procurement, risk management, governance and workplace conduct. It employs over 90 staff and the team dedicated to Byron Shire Councils internal audit services offers over 10 years work experience.

 

OCM offer a transition plan from the outgoing internal audit service provider, Grant Thornton, which initially includes the development of the strategic and annual internal audit plans, risk assurance maps, an internal audit charter and identifying and following up audit recommendations.

 

Financial Implications

 

The engagement of OCM is contained within the 2017/18 budget.

 

Statutory and Policy Compliance Implications

 

The performance of the Internal Audit Services is required to be undertaken in accordance with the terms and conditions of previous Internal Audit Services Contract 2017-0004. These terms and conditions require consideration of the NSW Department of Premier and Cabinet, Division of Local Government, Internal Audit Guidelines and compliance with the associated professional accounting and audit standards.

 

 


BYRON SHIRE COUNCIL

Staff Reports - Corporate and Community Services                                            4.2

 

 

Report No. 4.2             Audit, Risk and Improvement Committee - overview

Directorate:                 Corporate and Community Services

Report Author:           Jessica Orr, Project Manager - Special Projects

File No:                        I2017/1038

Theme:                         Corporate Management

                                      Governance Services

 

 

Summary:

 

Council’s Audit, Risk and Improvement Committee (Committee) provides professional, independent advice and assistance in assessing the organisation’s audit, compliance, risk and improvement performance.

 

There have been recent changes to the Committee’s constitution, membership and service provider which provides the opportunity to outline the Committee’s role and function. At Council’s June 2017 ordinary meeting a revised constitution was adopted (17-233) and a new audit service provider appointed (17-252). At the 3 August 2017 ordinary meeting new community members were appointed (17-304).

 

This report outlines the Committee’s constitution, member’s obligations and secretariat.  It also

highlights the next steps for the Committee and the newly appointed internal audit service provider in developing the scope for the four-year internal audit program, establishing Council’s audit universe and agreeing on audit reviews and priorities.

  

 

RECOMMENDATION:

That the Audit, Risk and Improvement Committee:

 

1.    Appoint _____ as the Committee’s Chairperson

 

 

2.    a)              Note the Audit, Risk and Improvement Committee’s constitution

 

       b)             Request Committee community members to complete acknowledgment of the                  Code of Conduct

 

 

Attachments:

 

1        Constitution of Audit, Risk and Improvement Committee (IARIC) final, E2017/78923 , page 10  

 

 


 

Report

 

Terms of Reference

 

The terms of reference of the Committee are contained in the Constitution of the Audit, Risk and Improvement Committee, as per attached. The Constitution is the governing document for the Committee, establishing the authority and responsibilities conferred on the Committee by Council and its role within Council. The Constitution confirms the function of the Committee as an advisory Committee of the Council, stating that it does not have executive power or authority to implement actions however, the Committee will at times make recommendations to Council.

 

The role of the Committee is, independently of management, to report to Council and provide appropriate advice and recommendations on matters concerning the good corporate governance of Council including performance improvement and risk management.

 

The Constitution was reviewed in early 2017 to take into account recent changes contained in the Local Government Amendment (Governance and Planning) Act 2016 (NSW). The Constitution outlines at item 3.2 the functions of the Secretariat services provided by Council staff:

 

3.2 Secretariat 

Corporate and Community Services Directorate will provide Secretariat support to the Committee through undertaking tasks including ensuring the agenda for each meeting and supporting papers are circulated at least one week period to the meeting and ensuring minutes are prepared and circulated.

 

Meetings

As per item 7 of the Constitution, the Committee will meet five times per year, based on the audit review program (four audit reviews each year) and one extraordinary meeting to review Council’s financials.  Quorum for each meeting is four committee members.

 

Matters that must be discussed at a meeting include:

 

a) Review and recommendation of the Annual Internal and External Audit Plan;

b) Review the Annual General Purpose and Special Purpose Financial Reports;

c) Review and assess Internal Audit Progress Reports;

d) Review and assess External Audit management letters;

e) Review and monitor Councils Risk Management Framework; and

f) Any other matters within the responsibility of the Committee.

 

The Chairperson may call a meeting if requested to do so by the General Manager, Committee member, the Internal or the External Auditor.

 

Meeting agendas will be prepared and provided in advance to members, along with appropriate briefing materials. Agenda items for consideration at a Committee meeting can be referred to the Chairperson of the Committee by Council, the General Manager, Committee members, the Internal or External Auditor.

 

Minutes will be taken by Council Secretariat at these meetings, detailing matters discussed and action agreed.

 

 


 

Obligations of members of the Committee

 

Members are reminded that at all times in participating as a member of the Committee, must discharge their duties and responsibilities by exercising honesty, objectivity and probity and not engage knowingly in acts or activities that have the potential to bring discredit to the Council or the Committee.

 

Item 4.4 of the Constitution states that members must also refrain from entering into any activity that that may prejudice their ability to carry out their duties and responsibilities objectively and must at all times act in a proper and prudent manner in the use of information acquired in the course of their duties. Members must not use Council information for any personal gain for themselves or their immediate families or any manner that would be contrary to law or detrimental to the welfare of the Council.

 

Committee members must not publicly comment on matters relative to activities of the Committee other than as authorised by Council.

 

Appointment of Chairperson

 

The Committee should discuss and agree on the appointment of a Chairperson for all meetings as per item 4.3 of the Constitution as outlined below:

 

4.3 Independent member appointment process

The Chairperson shall be an external member elected by a majority vote by the members of the Committee. The Committee is required to adhere to Council’s Code of Conduct and Code of Meeting Practice.

 

The Committee should note that if the Chairperson is absent from a meeting, the first business of the meeting will be to elect a Chairperson for that meeting from the independent members present.

 

This should be the first item of business for this meeting.

 

Sign acknowledgement of Code of Conduct forms 

 

All members of the Committee are required to complete acknowledgement of Code of Conduct forms as part of the requirements to be a member of any Council committee.

 

Next steps

 

Developing scope of audit review program

Between August and September 2017, the internal audit service provider will work with Council staff and executive to develop and scope the internal audit review program for the four year contract period, based on identifying key risks and priorities for management and improvement.

 

The process of developing the audit program will include undertaking a review of the past four years of audit reports, risk identification and ranking, and setting strategic corporate priorities.  This process will involve conversations with relevant Council staff and executive, and considering the strategic objectives of the organisation outlined in Councils integrated planning and reporting documents.

 

The key points of contact for all independent Committee members and the internal audit service provider will be Jessica Orr, Project Manager – Special Projects and Anna Vinfield, Manager Governance Services.

 

Financial Implications

 

Council’s audit program will be accommodated within the 2017/18 budget.

 

Statutory and Policy Compliance Implications

 

The performance of the Internal Audit Services is required to be undertaken in accordance with the terms and conditions of Internal Audit Services Contract 2017-0004. These terms and conditions require consideration of the NSW Department of Premier and Cabinet, Division of Local Government, Internal Audit Guidelines and compliance with the associated professional accounting and audit standards.


BYRON SHIRE COUNCIL

Staff Reports - Corporate and Community Services                                 4.2 - Attachment 1

PDF Creator


 

PDF Creator


 

PDF Creator


 

PDF Creator


 

PDF Creator


 

PDF Creator


 

PDF Creator


 

PDF Creator


 

PDF Creator


BYRON SHIRE COUNCIL

Staff Reports - Corporate and Community Services                                            4.3

 

 

Report No. 4.3             Summary of Internal Audit Program 2013 - 2017

Directorate:                 Corporate and Community Services

Report Author:           Jessica Orr, Project Manager - Special Projects

File No:                        I2017/1083

Theme:                         Corporate Management

                                      Governance Services

 

 

Summary:

 

This report has been prepared to allow the Audit, Risk and Improvement Committee to consider the Internal Audit Summary Report (August 2017) prepared by the outgoing internal auditor Grant Thornton.

 

This report highlights the findings and related management comments and actions for each audit review conducted during 2013 – 2017 by Grant Thornton as Council’s internal audit service provider during this period.

  

 

RECOMMENDATION:

That the Audit, Risk and Improvement Committee:

 

1.    Note the report from outgoing auditor Grant Thornton

2.    Consider the report conclusions in developing the audit, risk and improvement delivery program for 2017 – 2021.

 

 

Attachments:

 

1        Confidential - Byron Shire Council Internal Audit Summary Report - August 2017, E2017/79482  

 

 


 

Report

 

Grant Thornton was Council’s appointed internal auditors from 2013 to 2017.  During this time Grant Thornton conducted 17 reviews (15 within corresponding Internal Audit Plans and two outside of Internal Audit Plans):

 

·   Contract Management and Project Management Review

·   Water Supply and Sewer Infrastructure

·   Dealing with Emergencies Review 2014

·   Section 603 & 149 Certificates Review

·   Regulatory Enforcement Review

·   Billings and Collections Review

·   Work Health & Safety Review

·   Inventory Control Review

·   Governance and Complaints Handling Review 

·   Development Assessments Review

·   Procurement Review

·   Developer Contributions Review

·   Training, Recruitment and Succession Review

·   Business Continuity Plan (BCP) / Disaster Recover Plan (DRP)

·   Asset Management – Key Asset Infrastructure

 

Of the 15 conducted within the Internal Audit Plan, seven were given an overall rating of 'Acceptable', seven were rated 'Needs Improvement' and one was not provided with an overall rating.

 

From these reviews, there were 74 findings. Of the 74 findings, 12 were rated 'High'; 33 'Moderate'; 17 'Low' and 12 'Performance Improvement'. Further details of the results of completed audits are contained in Parts B and C of the attached report.  As at 18 May 2017, there were 12 outstanding recommendations that haven't been implemented, details of which can be found in Part D of the attached report.

 

Audit reviews conducted 2013 – 2017  

 

The previous internal audit strategy was developed on the consideration of a number of factors including:

 

·   Discussions with the Executive Management Team as part of a Enterprise Risk Management (ERM) process

·   Council’s risk profile as developed from the ERM workshop in January 2012

·   Known high risk areas within the Local Government sector

·   Council’s core business processes, values and objectives

·   Annual internal audit budget at the time.

 

In accordance with the Internal Audit program agreed to between Council and the internal auditors, the following reviews were completed during the 2013 - 2017 period:

 

Review

Internal Audit Plan & Overall Rating

Contract Management and Project Management Review

Scope of review:

§ Contract and Execution Monitoring.

§ Project Management across Council.

§ Insurances.

§ Record Management.

2013-2014

Overall rating:

Needs improvement.

Water Supply and Sewer Infrastructure

Scope of review:

§ Water and Sewerage network.

§ Key water and sewer assets and related systems.

§ Capital works program.

§ Legislative and regulatory requirements.

§ Drinking water quality management plan.

2013-2014

Overall rating:

Acceptable.

Dealing with Emergencies Review 2014

Scope of review:

§ Testing of the Disaster Plan and Standing Operating Procedures.

§ Disaster Plan and Standing Operating Procedures

2013-2014

Overall rating: Acceptable. 

Section 603 & 149 Certificates Review

Scope of review:

§ 603 certificates – statistics and fees.

§ 149 certificates – statistics and fees.

§ Recording, monitoring and tracking of certificates.

§ Fee collection and authority receipting.

§ Review of certificates generated.

2013-2014

Overall rating:

Needs improvement.

Regulatory Enforcement Review

Scope of review:

§ Inspections of specific sites – swimming pools, onsite sewerage management systems.

§ Food outlets register.

§ Actioning and responding to CRM tasks.

§ Policies and Procedures.

2014-2015

Overall rating:

Needs improvement.

Billings and Collections Review

Scope of review:

§ Outsourced service providers – agreements.

§ Appropriate systems, processes for collecting and recording.

§ Revenue and outsourced functions.

§ Annual rate levies.

2014-2015

Overall rating:

Acceptable.

Work Health & Safety Review

Scope of review:

§ Framework for the management of WHS

§ Reporting process adopted and implemented to manage and monitor compliance with WHS

§ WHS Induction Training

§ Return to Work

§ Incident Reporting

§ WHS Committee

§ Risk Assessments

§ Contractors.

2014-2015

Overall rating:

Needs improvement.

Inventory Control Review

Scope of review:

§ Inventory store and inventory value.

§ Authority.

§ Stock and fuel monitoring.

§ Segregation of duties, procedures, requisitions, improvement plan and user access.

2015-2016

Overall rating: Needs improvement.

 

Governance and Complaints Handling Review 

Scope of review:

§ Council meetings, business papers and Councillor corporate support.

§ Establishment and maintenance of risk management framework addressing strategic and operational risk.

§ Council committees.

§ Continuous improvement of Council policy, guidelines and procedures.

2015-2016

Overall rating:

Acceptable.

Development Assessments Review

Scope of review:

§ Compliance with legislative / regulatory requirements.

§ Fee / Levies Calculation and Collection thereof.

§ Assessment Process.

§ Fraud Prevention Controls / Measures.

§ Private Certifiers.

§ On-site Sewer Management Inspections.

§ Regulatory Inspections.

2015-2016

Overall rating:

Acceptable.

Procurement Review

Scope of review:

§ Procurement policy, guidelines and framework – appropriate training. 

§ Purchasing process – electronic systems and delegations.

§ Delegations of authority.

2015-2016

Overall rating:

Needs improvement.

Developer Contributions Review

Scope of review:

§ Documentation of key developer contributions process.

§ Determination of contributions.

§ Contributions register and calculators.

2016-2017

Overall rating:

Acceptable.

 

Training, Recruitment and Succession Review

Scope of review:

§ Recruitment methodology and development of recruitment policy.

§ Training opportunities and development of training policy and framework.

§ Staff engagement and culture – reporting.

§ Code of Conduct training (Council values).

§ Learning and development of staff.

§ Succession planning – talent management framework.

§ Talent retention – identify and maintain. 

§ Performance management policy and procedures.

2016-2017

Overall rating:

Needs improvement.

Business Continuity Plan (BCP) / Disaster Recover Plan (DRP)

Scope of review:

§ Consideration of existing documents and resources across the organisation addressing business continuity.

§ Adequacy and effectiveness of current Business Continuity Plan and Disaster Recovery Plan.

§ Establishment of crisis management team.

§ Training and education for crisis management team and all staff on BCP/DR.

§ Regular review of BCP and disaster recovery plans (including regional) and pilot testing.

2016-2017

Overall rating:

Not applicable. See Project Manager – Special Projects. 

Asset Management – Key Asset Infrastructure

Scope of review:

§ Asset register – completeness and accuracy.

§ Maintenance plans, inspection reports and defect recording.

§ Appropriate systems and recording and statistics in place for roads, drainage and building assets.

§ Asset Management Framework.

§ Special Rates Variation.

§ Capital Works Program.

§ Grants / external funding.

§ Financial and geographical information within the asset register.

2016-2017

Overall rating:

Acceptable.

 

Financial Implications

 

The audit program was conducted within allocated budgets.

 

Statutory and Policy Compliance Implications

 

The performance of the Internal Audit Services was undertaken in accordance with the terms and conditions of previous Internal Audit Services Contract 2013-0024. These terms and conditions require consideration of the NSW Department of Premier and Cabinet, Division of Local Government, Internal Audit Guidelines and compliance with the associated professional accounting and audit standards.

 


BYRON SHIRE COUNCIL

Staff Reports - Corporate and Community Services                                            4.4

 

 

Report No. 4.4             2017 Interim Audit Management Letter

Directorate:                 Corporate and Community Services

Report Author:           James Brickley, Manager Finance

File No:                        I2017/1087

Theme:                         Corporate Management

                                      Financial Services

 

 

Summary:

 

Council has received an Interim Audit Management Letter from the External Auditor, the Audit Office of NSW relating to the 2017 audit. The Audit Management Letter details fifteen items for management to consider and provides recommendations to improve internal controls and systems.

 

Each of the audit matters raised in the Interim Audit Management Letter 2017 have been identified in this report for consideration by the Internal Audit Advisory Committee.

  

 

RECOMMENDATION:

That the comments provided by Management in response to matters raised in the 2017 Interim Audit Management Letter be noted by Council.

 

 

Attachments:

 

1        Confidential - Draft Interim Audit Management Letter 2017, E2017/79705  

 

 

 


 

Report

 

Council has received an Interim Audit Management Letter following the interim audit for 2017 by the External Auditor, the Audit Office of NSW.  At the time of preparing this report, the Interim Audit Management Letter has not been formally issued by the NSW Audit Office.  A draft of the Interim Audit Management Letter containing full details is contained at Confidential Attachment 1 along with comments provided by Management.

 

It is expected the formal Interim Audit Management Letter will be issued by the NSW Audit Office prior to the Internal Audit Advisory Committee Meeting of 17 August 2017 and arrangements can be made to distribute the letter to Committee Members prior to the Meeting if that occurs.

 

The audit findings identified in the Interim Audit Management Letter 2017 are summarised in the table below:

 

Item

Audit Finding

1

Business Continuity Management

2

Goods Receipt Recording in Authority

3

Centralised Contract Register

4

IT Policy Framework

5

Activity Logs

6

User Access Rights

7

Generic Authority User with Elevated Privileges

8

IT Risk Management

9

Monitoring and Management Compliance with Key Laws and Regulations

10

Backup Testings

11

Maintenance of Delegated Authorities in Authority

12

Cloud Services

13

Temporary Employee Timesheets Not Always Reviewed

14

EFT Payment Authorisation Evidence

15

User On-Boarding/Off-Boarding Processes

 

If reference is made to Confidential Attachment 1, there is a description of each audit finding, the implication of the finding, a recommendation for improvement and a management response from Council for the Internal Audit Advisory Committee to consider.  In addition each audit finding has been assigned a likelihood and consequence level along with a risk level.

 

Financial Implications

 

There are no financial implications associated with this report.  It is expected the adoption of the recommendations suggested in this report and their implementation would be met from existing budget allocations.

 

Statutory and Policy Compliance Implications

 

In regard to keeping accounting records, Section 412 of the Local Government Act 1993 requires Council to do the following:

 

(1) A council must keep such accounting records as are necessary to correctly record and explain its financial transactions and its financial position.

 

(2) In particular, a council must keep its accounting records in a manner and form that facilitate:

(a) the preparation of financial reports that present fairly its financial position and the results of its operations, and

(b) the convenient and proper auditing of those reports.

 

The issue of an Audit Management Letter provides an independent view on the controls and systems in place surrounding its accounting records.

 

 

 


BYRON SHIRE COUNCIL

Staff Reports - Corporate and Community Services                                            4.5

 

 

Report No. 4.5             Costings associated with Land and Environment Court proceedings Byron Shire Council ats Butler Street Community Network Inc.

Directorate:                 Corporate and Community Services

Report Author:           Ralph James, Legal Services Coordinator

File No:                        I2017/1091

Theme:                         Corporate Management

                                      Governance Services

 

 

Summary:

 

On 20 July 2016 a Class 1 objector appeal pursuant to s 98(1) of the Environmental Planning and Assessment Act 1979 (NSW) was lodged in the NSW Land Environment court seeking that development consent be refused to Development Application number 10.2016.77.1 for the construction of a bypass road and associated works (‘the Byron Bay Bypass’).

 

On 2 June 2017 the Commissioner made the following orders:

 

1.  Development Consent is granted to Development Application No. 10.2016.77.1 for construction of a road and associated works subject to conditions of consent.

2.  The appeal is otherwise dismissed.

 

This report sets out the legal costs and disbursements associated with Council’s participation in the proceedings in its capacity as a Respondent.

  

 

RECOMMENDATION:

That this report be noted.

 

 

 

Attachments:

 

1        Breakdown of Butler Street Costs - General, E2017/80736 , page 30  

2        A spreadsheet setting out costs and disbursements relating to expert evidence, E2017/80727 , page 35  

 

 


 

Report

 

On 20 July 2016 a Class 1 objector appeal pursuant to s 98(1) of the Environmental Planning and Assessment Act 1979 (NSW) was lodged in the NSW Land Environment court seeking that development consent be refused to Development Application number 10.2016.77.1 for the construction of a bypass road and associated works (‘the Byron Bay Bypass’). Development consent had been granted by the Northern Region Joint Regional Planning Panel (JRPP).

 

The proceedings were brought by the Butler Street  Community Network Incorporated against the JRPP, GHD Pty Ltd and Byron Shire Council.

 

Both the JRPP and GHD filed submitting appearances. Council’s active role in the proceedings was authorised by the General Manager under delegation.

 

The proceedings were the subject of a conciliation conference on site and then in Byron Bay on Friday 2 December 2016. No agreement was reached.

 

The matter was heard on 17-19 May 2017. Day 1 of the hearing was on-site. Days 2 and 3 were at the Land and Environment Court in Sydney.

 

On 2 June 2017 the Commissioner made the following orders:

 

1.  Development Consent is granted to Development Application No. 10.2016.77.1 for construction of a road and associated works subject to conditions of consent.

2.  The appeal is otherwise dismissed.

 

Council was represented by Mr A Galasso SC instructed by HWL Ebsworth Lawyers (from Council’s legal services panel)

 

Council relied on the expert evidence of Mr Paul Grech (planning), Dr Renzo Tonin (acoustic), Mr Robert Staas (heritage), Professor Roberta Ryan (social planning) and Mr Daniel Williams (ecology).

 

Legal representatives and experts were required to attend both the Conciliation Conference and the hearing.

 

In addition to the experts who gave evidence it was necessary to obtain evidence which fed into the evidence of the experts who did it give evidence. For example the evidence of the quantity surveyor and that of the landscape architect fed into the acoustic evidence.

 

The economic expert provided evidence in respect of a contention in the proceedings advanced by the applicant but later abandoned.

 

It was also necessary to compile other expert evidence which was not ultimately relied upon given that the applicant did not raise, or abandoned, contentions in those fields.

 

For cases in Class 1 of the Court’s jurisdiction, the Court rules (Pt 3 rule 3.7 of the Land and Environment Court Rules 2007) provide that the Court is not to order payment of costs unless the Court considers that an order for the whole or any part of the costs is fair and reasonable in the circumstances. What is ‘fair and reasonable’ depends on the circumstances of each individual case. No costs order has been made.

 

Council is seeking to recover the legal costs incurred relating to an unsuccessful Notice of Motion brought by the Butler Street Community Network.  The total of these legal costs is $22,665 (ex GST). In delivering judgement on the Notice of Motion the Judge reserved the question of costs.

Financial Implications

 

A breakdown of the costs incurred is as follows:

 

Solicitor’s                                                                  $149,002.00

Fees

(spreadsheet columns C, D, F, G, I, J, K, L, M and N)

Solicitor’ disbursements                                              $36,854.00

(spreadsheet columns B, D and H)

Sub total                                                                   $185,856.00

 

Counsel

Fees                                                                            $90,750.00

 

Experts

Fees                                                                          $202,267.12

Expert’s disbursements                                                  $7528.67

Sub total experts                                                      $209795.79

 

TOTAL                                                                       $486,401.79

 

The most complex area of expertise in the proceedings was in respect of acoustics. That explains the amount of fees paid in that discipline as opposed to other disciplines.

 

Statutory and Policy Compliance Implications

 

Nil

 


BYRON SHIRE COUNCIL

Staff Reports - Corporate and Community Services                                                           4.5 - Attachment 1

PDF Creator


 

PDF Creator


 

PDF Creator


 

PDF Creator


 

PDF Creator


BYRON SHIRE COUNCIL

Staff Reports - Corporate and Community Services                                                           4.5 - Attachment 2

PDF Creator