Ordinary Meeting
Minutes
3 August 2017
MINUTES OF THE BYRON
SHIRE COUNCIL Ordinary Meeting HELD
ON Thursday,
3 August 2017 COMMENCING AT 9.03AM AND CONCLUDING AT
3.41PM
I2017/1033
PRESENT: Cr
S Richardson (Mayor), Cr B Cameron, Cr C Coorey, Cr J Hackett, Cr A Hunter,
Cr M Lyon, Cr J Martin, Cr S Ndiaye and Cr P Spooner
Staff: Ken
Gainger (General Manager)
Mark
Arnold (Director Corporate and Community Services)
Phil
Holloway (Director Infrastructure Services)
Shannon
Burt (Director Sustainable Environment and Economy)
Chris Larkin (Manager
Sustainable Development)
Sharyn French (Manager
Environmental and Economic Planning)
David
Royston-Jennings/Mila Jones (Minute Taker)
The Mayor opened the meeting and acknowledged that
the meeting is being held on Arakwal Country and that we pay our respects to
the elders past and present and extend our respect to the Bundjalung clans
whose lands and waters are part of the Shire.
Councillor Hackett paid tribute to Col Hadwell, who
recently passed. She paid tribute to his life, noting his many accomplishments
and good character, before concluding by reciting a poem he had written about
Byron Bay.
Public
Access
Prior to dealing with the circulated reports and associated
information, a Public Access Session was held and Council was addressed on the
following:
13.6 BSC
ats Glassington Land and Environment Court Proceedings
Matthew O’Reilly, representing Community Alliance
for Byron Shire, addressed Council against the recommendation.
13.7 Classification
of land – former Mullumbimby Hospital site Lot 188 DP 728535, Lot 1 DP
1159861 and Lot 138 DP 755722
Matthew O’Reilly, representing Community Alliance
for Byron Shire, addressed Council in favour of the recommendation.
13.11 Planning
– 10.2016.625.1 – Alterations and Additions to Existing Commercial
Building to Create a Café and Day Spa at 35-37 Burringbar Street,
Mullumbimby
Brendan Lawless addressed Council in favour of the
recommendation.
Matthew O’Reilly, representing Community Alliance
for Byron Shire, addressed Council against the recommendation.
13.13 Report
of the Heritage Panel Meeting held on 27 April 2017
Len Bates, a community member of the Heritage Panel,
addressed Council against the recommendation.
13.14 North
Ocean Shores Sports Field Renaming
Ronda Asweich addressed Council in favour of the
recommendation.
14.2 Byron
Bay Bypass Legal Proceedings
John Anderson addressed Council on the response provided
to the Question taken on notice at the 22 June Ordinary Meeting of Council.
14.3 Staff
comments in Notices of Motion
John Anderson addressed Council on the response provided
to the Question taken on notice at the 22 June Ordinary Meeting of Council.
Submission
No. 1 201 Lismore Road, Bangalow
Ean Jones made a submission to Council regarding 201 Lismore
Road, Bangalow.
Submission
No. 2 Compliance
Tom Tabart made a submission to Council regarding compliance.
Submission
No. 3 Public exhibition of Review of
Environment Factors by Council
Matthew O’Reilly made a submission to Council
regarding the public exhibition of Review of Environment Factors by Council.
Submission
No. 4 Repair and resurfacing of
Coolamon Avenue, Mullumbimby
Ivan Saric made a submission to Council regarding his
request for the repair and resurfacing of Coolamon Avenue, Mullumbimby.
Question
No. 1 Helicopter
Scenic Flights
Virginie Hemmery asked the following question:
Can Council update the community
on actions being undertaken to restrict the operation of helicopter scenic
flights at Elements of Byron Resort and what compliance and prosecution action
Council is pursuing regarding this unauthorised use?
The Director Sustainable Environment and Economy took the question on notice.
Question
No. 2 Illegal
Short Term Holiday Letting
David Wallace asked the following question:
With Council resuming prosecution of illegal holiday
letting, is it prudent to review, revise and restore Fact Sheet 9 to the
website as soon as possible?
The Director Sustainable Environment and Economy provided a
response.
Question
No. 3 Substantial
Dwelling Constructions without Council Consent.
John Anderson asked the following question:
In the situation where a substantial dwelling is constructed
without Council consent and where there are subsequent complaints from
neighbours;
1. what criteria
do council staff apply in order to determine their initial response, in terms
of formal stop work orders, letters of demand, or whatever other avenues are
available to them? Please describe options.
2. what
criteria do council staff apply as to whether demolition or decommissioning is
ordered, or whether a DA must be lodged for occupation of the dwelling, or
whether such DA must be notifiable i.e. publicly advertised? Please describe
options.
3. have
there been any cases in the last five years where it has been the elected
council, possibly in confidential session, which has made the relevant
decisions? Please describe instances or where councillors have at least been
informed.
The Director Sustainable Environment and Economy took the
question on notice.
Question
No. 4 Draft Koala
Plan of Management
Matthew O’Reilly asked the following question:
Will Council consider re-exhibiting the Byron Koala Plan of
Management?
The Director Sustainable Environment and Economy took the
question on notice.
Question
No. 5 Application
of Planning Law
Tom Tabart asked the following question:
Given the desirability of consistency in Councils
application of planning law, why has a stop work notice not been issued in
relation to 139 Newes Road, Coorabell, Paradise 1, over illegal dwellings and
road works close to Wilson’s Creek, whereas 541 Friday Hut Road did
receive a stop work notice?
The Director Sustainable Environment and Economy took the
question on notice.
Question
No. 6 Council
Advertising
Lee Cass asked the following question:
With approximate cost of $75,000 per year, why does Council
prioritise advertising with Byron Shire News as opposed to the local newspaper
the Echo, given that the Echo puts out 23,000 copies per week when Byron Shire
News puts out 16,000?
The General Manager provided a response.
The meeting adjourned at 10.09am and reconvened at
10.37am.
Apologies
There were no apologies.
Requests
for Leave of Absence
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Procedural
Motion
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17-287
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Resolved that Cr Richardson
be granted a leave of absence from 20 to 27 September 2017.
(Hunter/Spooner)
The motion was put to the vote and declared carried.
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Declarations
of Interest – Pecuniary and Non-Pecuniary
Cr Paul Spooner declared a non-pecuniary interest in Report 13.4.
The nature of the interest being that a nominee to a Section 355 Committee is
an employee of the Byron Bay Community Association, of which he is the General
Manager. Cr Spooner elected to remain in the Chamber and will participate in
discussion and the vote.
Cr Paul Spooner declared a non-pecuniary interest in Report 13.8.
The nature of the interest being that this report relates to the development
matter dealing with another Councillor. Cr Spooner elected to leave the
Chamber and will not participate in discussion or the vote.
Cr Alan Hunter declared a pecuniary interest in Report 13.8.
The nature of the interest being a possible conflict. Cr Hunter elected to
leave the Chamber and will not participate in discussion or the vote.
Tabling of Pecuniary Interest
Returns
In accordance with the Local Government Act 1993 Section
450(A), Section 449(3) Returns were tabled for the following members of staff:
Anna Vinfield, Manager Governance Services
Adoption
of Minutes from Previous Meetings
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17-288
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Resolved that
the minutes of the following meetings be confirmed:
· Byron
Shire Reserve Trust Committee held 22 June 2017
· Ordinary
Meeting held 22 June 2017
· Extraordinary
Meeting held 6 July 2017 (Spooner/Richardson)
The motion
was put to the vote and declared carried.
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Reservation
of Items for Debate and Order of Business
The Mayor suspended standing orders to allow for items to be
reserved for debate, being:
Staff Reports
Corporate and Community Services
Report No. 13.1 Heritage
Panel - Community Representatives
Report No. 13.2 Audit,
Risk and Improvement Committee - Community Representatives
Report No. 13.3 Byron
Shire Floodplain Risk Management Advisory Committee - Community Representatives
Report No. 13.4 Section
355 Committee Matters - Appointment of new members, a resignation and
Councillor representative request
Report No. 13.6 BSC
ats Glassington Land and Environment Court proceedings
Report No. 13.7 Classification
of land - former Mullumbimby Hospital site Lot 188 DP 728535, Lot 1 DP 1159861
and Lot 138 DP 755722
Report No. 13.8 BSC
ats Hunter Land and Environment Court proceedings
DA 10.2016.486.1, DA 10.2013.559.1
Sustainable Environment and Economy
Report No. 13.9 Local
Approvals Policy
Report No. 13.11 PLANNING
- 10.2016.625.1 - Alterations and Additions to Existing Commercial Building to
Create a Cafe and Day Spa at 35-37 Burringbar Street Mullumbimby
Report No. 13.13 Report
of the Heritage Panel Meeting held on 27 April 2017
Infrastructure Services
Report No. 13.14 North Ocean
Shores Sports Field Renaming
The remaining Recommendations and Committee Recommendation
were adopted as a whole, being moved by Cr Richardson and seconded by Cr Lyon.
Each recommendation is recorded with a separate resolution number commencing at
Resolution No. 17-289 and concluding with Resolution No. 17-292.
staff Reports – Corporate and
community Services
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Report No. 13.5 Council
Investments June 2017
File No: I2017/948
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17-289
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Resolved that the
report listing Council’s investments and overall cash position as at 30
June 2017 be noted. (Richardson/Lyon)
The motion was put to the vote and declared carried.
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staff Reports – Sustainable
Environment and economy
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Report No. 13.10 Draft
Byron Shire Flying-fox Camp Management Plan
File No: I2017/835
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17-290
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Resolved:
1. That
the draft Byron Shire Flying-fox Camp Management Plan be noted.
2. That
the draft Byron Shire Flying-fox Camp Management Plan, Attachment 1
(E2017/68904), be placed on public exhibition for a period of four weeks from
5 August until 1 September 2017. (Richardson/Lyon)
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Report No. 13.12 PLANNING
- State Environmental Planning Policy No. 1 - Variations to development
standards - 1 April 2017 to 30 June 2017
File No: I2017/945
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17-291
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Resolved that Council
note the report. (Richardson/Lyon)
The motion was put
to the vote and declared carried.
Crs Coorey,
Martin, Lyon, Ndiaye, Richardson, Cameron, Hackett, Spooner and Hunter voted
in favour of the motion.
No Councillors
voted against the motion.
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Confidential
Reports - Infrastructure Services
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Report No. 15.1 Confidential - Tender - Contract
Truck Haulage, Plant and Equipment Hire 2017-0012
File No: I2017/844
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17-292
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Resolved:
1. That
Council award Tender 2017-0012 for the Contract Truck Haulage and Plant and
Equipment Hire to all Tenderers as a Panel Contract in accordance with the
contract documents and the rates and information supplied in their tenders.
2. That Council makes public its decision, including the name of the
successful tenderers, in accordance with Clause 179(b) of the Local
Government (General) Regulation 2005.
(Richardson/Lyon)
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Procedural Motion
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17-293
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Resolved that
Council change the order of business to deal with Reports 13.6, 13.7, 13.11,
13.13 and 13.14 next on the Agenda. (Richardson/Ndiaye)
The motion was put to the vote and declared carried.
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Staff Reports - Corporate and
Community Services
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Report No. 13.6 BSC
ats Glassington Land and Environment Court proceedings
File No: I2017/979
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17-294
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Resolved that the General
Manager be authorised to enter into consent orders or a s34 Conciliation
Agreement approving Development Application 10.2016.423.1, subject to
appropriate conditions to be finalised under delegation. (Coorey/Spooner)
The motion was put to the vote and declared carried.
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Report No. 13.7 Classification
of land - former Mullumbimby Hospital site Lot 188 DP 728535, Lot 1 DP
1159861 and Lot 138 DP 755722
File No: I2017/958
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17-295
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Resolved that Council
give notice for not less than 28 days of the following proposed resolution:
pursuant to
Section 34 of the Local Government Act 1993:
“That Lot 188 DP 728535 and lot 1 DP 1159861 and lot
138 DP 755722, the former Mullumbimby Hospital site, be classified
“operational” under the Local Government Act 1993.” (Martin/Ndiaye)
The motion was put to the vote and declared carried.
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Staff Reports - Sustainable
Environment and Economy
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Report No. 13.11 PLANNING
- 10.2016.625.1 - Alterations and Additions to Existing Commercial Building
to Create a Cafe and Day Spa at 35-37 Burringbar Street Mullumbimby
File No: I2017/943
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17-296
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Resolved that pursuant to Section 80
of the Environmental Planning & Assessment Act 1979, Development
Application 10.2016.625.1 for alterations and additions to existing
commercial building to create a recreation facility (indoor - spa) and
food and drink premises (café – juice bar), be granted consent subject to conditions
listed in Attachment 2 #E2017/72513 as amended below:
4. Restricted
Use of Treatment Rooms
a) Skin Penetration activities are not permitted
within the treatment rooms with out prior approval of Council.
b) The treatment rooms must not be used
for any form of residential occupation or as tourist and visitor
accommodation unless separately approved by Council.
11. Bicycle
parking required.
The
application for a Construction Certificate is to include:
ii) plans and specification indicating 10
bicycle parking spaces that are to be located off-site and provided within
Burringbar Street road reserve. Bicycle parking spaces are to be located
adjacent to the existing landscape areas on the corner of Burringbar Street
and Studal Lane (within parking triangles remaining from existing angle car
parking bays) or elsewhere in Burringbar Street adjacent to Street Landscape
areas.
The bicycle parking
arrangements are to comply with the requirements of AS 2890.3: Parking
facilities, Part 3: Bicycle parking.
Such plans and
specifications must be approved as part of the Construction Certificate and
approved under separate Roads Act approval.
(Cameron/Coorey)
The motion was put to the vote and declared carried.
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Report No. 13.13 Report
of the Heritage Panel Meeting held on 27 April 2017
File No: I2017/976
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17-297
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Resolved:
1. That
Council note the minutes of the Meeting held on 27 April 2017.
2. That Council does
not adopt the Panel’s Recommendation 4.1.1 as shown in the attachment
to this report, but instead adopts the Management Recommendation as follows:
Management Recommendation:
a) A link be provided in the email sent
to notify the Heritage Panel of heritage DAs lodged.
b) Council’s Heritage Advisor to
run more “free heritage advisory” days for the public.
c) General fact sheets with information
on heritage to be developed by the Heritage Advisor.
d) The use of project working groups to
identify grant and project opportunities and implementation of any grant
available.
e) The Heritage Panel to be kept
informed of grant opportunities including for Heritage Mapping.
f) Invite the Aboriginal Liaison
Officer to attend future meetings of the Panel.
g) That the Panel review the
Constitution at the next meeting.
h) That the Heritage Panel request a
letter from Council to the Minister of Planning expressing Council’s
concern that the Affordable Housing SEPP overrides local heritage provisions
in the LEP and DCP and that Clause 16A (Affordable Housing SEPP) is too vague
to enable Council to make decisions on character alone.
i) Grant funding to be sought to
undertake a DCP Heritage Conservation Area review.
j) Community based heritage study
to be reviewed subject to funds being made available and should the Heritage
Study be updated any new items be considered for listing in the LEP.
3. That
Council identify submissions from Heritage Panel members and/or the comments
of the Heritage Panel in staff assessment reports within Council agendas.
4. That
Council allow for discussion of live applications at Heritage Panel meetings
where time permits. (Cameron/Richardson)
The motion was put to the vote and declared carried.
Crs Spooner and Hunter voted against the motion.
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Report No. 13.14 North
Ocean Shores Sports Field Renaming
File No: I2017/957
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17-298
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Resolved that
Council:
a) selects
Bob Bellear Sports Field as its preferred permanent name for the North Ocean
Shores Sports Field from the community suggestions provided in this report;
b) staff
proceed to exhibit the preferred name for 28 days as per Council’s
Naming of Public Places and Community Facilities Policy; and
c) should
no objections be received for the preferred new name, that the name be adopted
and submit the name to the NSW Geographical Names Board for approval and
registration. (Ndiaye/Richardson)
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AMENDMENT
Moved that
Council:
a) selects
Tuckaburra Sports Field as its preferred permanent name for the North Ocean
Shores Sports Field from the community suggestions provided in this report;
b) staff
proceed to exhibit the preferred name for 28 days as per Council’s Naming
of Public Places and Community Facilities Policy; and
c) should
no objections be received for the preferred new name, adopt the name and submit
the name to the NSW Geographical Names Board for approval and registration.
(Spooner/Hackett)
The amendment was put to the vote and declared lost.
Crs Coorey, Martin, Lyon, Ndiaye, Richardson and Cameron
voted against the amendment.
The motion was put to the vote and declared carried.
Mayoral
Minute
There was no Mayoral Minute.
Notices of Motion
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Notice of Motion No. 9.1 Alternative
Trialled Options for Managing our Threatened Coastal Zone
File No: I2017/923
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17-299
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Resolved:
1. That Council write to our local
members of parliament calling for a coordinated national approach to managing
coastal hazards. Currently, the task of dealing with coastal hazards along
Australia's vast coastline is left predominately to local councils. This
enormous task is beyond the capacity of councils, states and territories. The
scale of the challenge requires a national approach, national leadership and
national funding.
2. That Council submit a bid to host the
27th NSW Coastal Conference in 2018 and the next unallocated
Australian Coastal Councils Conference.
3. That if these submissions are
unsuccessful, staff prepare a report on the implications of holding an event
in Byron Shire, inviting key experts in coastal management.
4. That Council invites Angus Gordon to
share his insights on the Collaroy tripperwall for possible adoption within
Byron Shire. (Hackett/Spooner)
The motion was put to the vote and declared carried.
Cr Hunter voted against the motion.
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Notice of Motion No. 9.2 Business
Advisory Group
File No: I2017/977
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17-300
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Resolved that
Council receive a report from staff within three months regarding the
establishment of a Business Advisory Group comprising of distinguished local
business leaders from various fields of endeavour, including commerce,
agriculture, creative enterprises and others as appropriate, to work with
Council in identifying business growth opportunities for the Byron region,
including those potentially developed on Council owned properties. The staff
report needs to also recommend the structure, cost and management support for
the group.
(Hunter/Richardson)
The motion was put to the vote and declared carried.
Crs Coorey, Cameron and Hackett voted against the
motion.
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The meeting adjourned at 12.37pm for lunch and reconvened
at 1.32pm in the Conference Room.
Petitions
The Mayor tabled a petition containing 1,768 signatures from
residents objecting to Development
Application 10.2016.283.1, 201 Lismore Road, Bangalow.
Submissions
and Grants
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Report No. 11.1 Byron
Shire Council Grants and Submissions as at 12 July 2017
File No: I2017/959
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17-301
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Resolved that Council
note the report. (Richardson/Lyon)
The motion was put to the vote and declared carried.
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Delegates'
Reports
Ecocity World Summit 12-14 July 2017
The Mayor gave a verbal report on the Summit.
Staff
Reports - Corporate and Community Services
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Report No. 13.1 Heritage
Panel - Community Representatives
File No: I2017/684
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17-302
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Resolved:
1. That Council note the report.
2. That
Council nominate the following community representatives for appointment to
the Heritage Panel:
a)
Janet Kneale
b) Joe
Vescio
c) Robyn Wright
3. That
Council thank all nominees for their interest and time in submitting an
Expression of Interest. (Cameron/Richardson)
The motion
was put to the vote and declared carried.
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17-304
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Resolved:
1. That Council note the report.
2. That
Council nominate the following three community representatives for
appointment to the Audit, Risk and Improvement Committee to sit on this
Group:
a)
Michael Georghiou
b)
Brian Wilkinson
c)
Rae Wills
3. That
Council thank all nominees and retiring members for their interest and time
in submitting an Expression of Interest and where relevant, their time on the
previous Committee.
4. That
Council authorise the General Manager delegated authority to negotiate the
three appointments’ payments to fit within the allocated budget.
5. That
for the next nomination process Council establish a sitting fee for the
chairperson and the committee members. (Cameron/Richardson)
The motion was put to the vote and declared carried.
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Procedural Motion
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17-305
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Resolved that the meeting move out of confidential session.
(Richardson/Cameron)
The motion was put to the vote and declared carried.
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Report No. 13.3 Byron
Shire Floodplain Risk Management Advisory Committee - Community
Representatives
File No: I2017/782
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17-306
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Resolved that in accordance with section 10A(2)(a) of the
Local Government Act 1993, Council move into confidential session to discuss
this report as the matters and information in this report relate to personnel
matters concerning particular individuals (other than councillors).
(Richardson/Cameron)
The motion was put to the vote and declared carried.
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17-307
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Resolved:
1. That Council note the report.
2. That
Council nominate the following community representatives for appointment to
the Byron Shire Floodplain Risk Management Advisory Committee to sit on this
Group:
a) Robyn
Bolden
b) Rebecca
Brewin
c) Susan
Skyvington
d) Steve
Keefe
e) Duncan
Dey
f) Matthew
Lambourne
3. That
Council thank all nominees for their interest and time in submitting an
Expression of Interest. (Richardson/Cameron)
The motion was put to the vote and declared carried.
Cr Hunter voted against the motion.
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Procedural Motion
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17-308
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Resolved that the meeting move out of confidential session.
(Richardson/Cameron)
The motion was put to the vote and declared carried.
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The meeting adjourned at 2.34pm in order to open the
Byron Shire Reserve Trust Committee Meeting. Resolution 17-309 was
used during that meeting. The Ordinary Meeting reconvened at 2.36pm.
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Report No. 13.4 Section
355 Committee Matters - Appointment of new members, a resignation and
Councillor representative request
File No: I2017/809
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Cr Spooner
declared a non-pecuniary interest in this matter. He elected to remain in the
Conference Room and participate in the discussion and the vote.
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17-310
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Resolved:
1. That
Council appoint Cr Coorey as the Councillor representative to the Senior Citizen’s
Hall Byron Bay replacing Cr Ndiaye in this role, with Cr Hackett being the
alternate delegate.
2. That
the resignation from Peter Wynn-Moylan from the Bangalow A& I Hall Board
of Management be accepted and that a letter of thanks be provided.
3. That
the resignation from Howard Sedgmen be accepted following the Lone Goat
Gallery Board of Management meeting on 14th August 2017 and that a
letter of thanks be provided.
4. That
Shanti Des Fours be appointed to the Lone Goat Gallery Board of Management.
5. That
the resignation from Leigh Rees from the Ocean Shores Community Centre Management
Committee be accepted and that a letter of thanks be provided.
6. That
Susan Cubis be appointed to the Ocean Shores Community Centre Management Committee.
7. That
Melinda Bennett be appointed to the Brunswick Heads Memorial Hall Management
Committee. (Ndiaye/Richardson)
The motion was put to the vote and declared carried.
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Report No. 13.8 BSC
ats Hunter Land and Environment Court proceedings
DA 10.2016.486.1, DA 10.2013.559.1
File No: I2017/967
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Cr Spooner
declared a non-pecuniary interest in this matter. He elected to leave the Conference
Room and not participate in the discussion or the vote.
Cr Hunter
declared a pecuniary interest in this matter. He elected to leave the Conference
Room and not participate in the discussion or vote.
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17-311
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Resolved that in
accordance with section 10A(2)(g) of the Local Government Act 1993, Council
move into confidential session as advice concerns litigation, or advice that
would otherwise be privileged from production in legal proceedings on the
ground of legal professional privilege.
(Richardson/Coorey)
The
motion was put to the vote and declared carried.
Crs
Spooner and Hunter were not present for the vote.
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17-312
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Resolved:
1. That
the General Manager be authorised to enter into consent orders or a s34
Conciliation Agreement approving development application 10.2016.486.1, subject
to appropriate conditions to be finalised under delegation.
2. That
the General Manager be authorised to enter into consent orders or a s34
Conciliation Agreement modifying development application 10.2013.559.1,
subject to appropriate conditions to be finalised under delegation.
(Lyon/Richardson)
The motion was put to the vote and declared carried.
Crs Spooner and Hunter were not present for the vote.
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Procedural Motion
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17-313
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Resolved that
the meeting move out of confidential session. (Richardson/Cameron)
The motion was put to the vote and declared carried.
Crs Spooner and Hunter were not present for the vote.
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Crs Spooner and Hunter returned to the meeting at 3.06pm.
Staff
Reports - Sustainable Environment and Economy
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Report No. 13.9 Local
Approvals Policy
File No: I2016/997
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17-314
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Resolved:
1. That
Council endorse the exemption provisions of the draft Local Approvals Policy
and request consent from the Departmental Chief Executive for the proposed
exemptions.
2. That
the draft Local Approvals Policy, after consent by the Departmental Chief
Executive, be placed on public exhibition for a period of 42 days for
community consultation and submissions from interested parties.
3. That
after the community consultation process the Draft Local Approvals Policy be
reported back to Council.
4. That
a workshop is held on the Local Approvals Policy as part of a Strategic
Planning Workshop. (Coorey/Richardson)
The motion was put to the vote and declared carried.
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Questions
With Notice
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Question With Notice No. 14.1 Sewage
System
File No: I2017/928
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At Council’s
Ordinary Meeting held on 22 June 2017, Tom Tabart asked the following
question which was taken on notice:
Why has virtually all the land required by the pipe
line from Ocean Shores to Brunswick Valley already been acquired and how much
has it cost?
Response Manager Utilities:
On 25 February 2010, the following report to an ordinary
Council meeting produced the following:
WATER AND RECYCLING - CONFIDENTIAL REPORT
Report No. 13.8 CONFIDENTIAL Ocean Shores
Effluent Reuse Easements and Grant Application
Summary:
Council resolved in February 2009 to defer elements of the
Brunswick Area Sewerage Augmentation Scheme, including the Ocean Shores
effluent reuse infrastructure, due to financial limitations.
A grant opportunity providing up to 50% of project costs
may afford Council the opportunity to implement this project in a shorter
timeframe than would otherwise be the case.
A critical component of this project that will eliminate
the last of Councils dry weather effluent discharges from sewage treatment
plants to the environment, whether undertaken in the short or longer term, is
the acquisition of easements along the proposed pipeline route.
The acquisition of easements is a key element of pipeline
projects and can take extended periods of time which could impact on the
feasibility of current and future grant opportunities. For this reason,
it is proposed to proceed with acquisition of easements.
The purpose of this report is to advise Council of the
grant initiative and seek approval for the expenditure in the 2010/11 budget
and to acquire the easements.
Resolution 10-90:
Resolved that in relation to affected private property
parcel numbers being 12390, 96030, 124450 239590 and Crown land road
reserves, that Council authorise subject to the parties entering an
acceptable deed of agreement:
a) the acquisition of the
easements as detailed in this report: and
b) the affixing of the
Council seal to all necessary documents that affect the acquisitions.
(Tucker/Woods)
Costs for the easement acquisitions including legal,
surveying, registration, wages, etc. approximate $130,000 to date. The
budget estimate for the project in 2010 was $168,000.
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Question With Notice No. 14.2 Byron
Bay Bypass Legal Proceedings
File No: I2017/929
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At Council’s
Ordinary Meeting held on 22 June 2017, Fast Buck$ asked the
following questions which were taken on notice:
Why was the amount of money spent? I would like an
explanation in relation of the case and how many hearing days there were, the
cost for barristers and solicitors, the cost for expert reports and how many
of these there were, I’d also like to know in what authority did the
General Manager commit so many resources to this single case and, given that
Council won the case, who gets to pay the costs?
Response Coordinator Legal Services:
The Land and Environment Court
proceedings were an objector appeal brought pursuant to
s 98(1) of the Environmental
Planning and Assessment Act 1979 (NSW) by
the Butler Street Community Network
Incorporated against the Northern Region Joint Regional Planning Panel, GHD
Pty Ltd and Byron Shire Council. The appeal was against the grant of consent
by the JRPP on 22 June 2016 for Development Application No 10.2016.77.1
lodged by GHD on behalf of the Council, for the construction of a bypass road
and associated works (‘the Byron Bay Bypass’).
The
objector appeal was lodged on 20 July 2016 and sought that development
consent be refused to Development Application number 10.2016.77.1
Council had resolved twice to
progress with the preferred route along Butler Street.
Both the JRPP and GHD filed
submitting appearances. Council’s active role in the proceedings was
authorised by the General Manager who is delegated to take such actions and
do such acts or things (not inconsistent with the Act or any Act, ordinance,
regulation, or by-law conferring powers or imposing duties on the Council or
with any resolution or minute which has been passed or adopted by the
Council) as he deems necessary to generally manage, control and administer
the affairs of the Council including exercise of the powers and discretions
of the Council and performance of its duties.
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.
It
is the usual practice of the Court to list merit appeals for a conciliation
conference unless the parties can satisfy the Court that there is a good
reason the proceedings should not be fixed for a conference. The
purpose of a conciliation conference is to resolve or narrow the issues in
dispute between parties.
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.
http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/nsw/NSWLEC/2017/1278.html?stem=0&synonyms=0&query=title(butler%20street%20)
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.
Costs as at 30 June 2017 were:
Legal representation (solicitor
and counsel) $440,371.38 ex GST
Experts $31,728.87 ex GST
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.
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Question With Notice No. 14.3 Staff
comments in Notices of Motion
File No: I2017/972
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At Council’s
Ordinary Meeting held on 22 June 2017 and previously, Mr John Anderson asked
the following question which was taken on notice:
(interpreted from comment) Do the GM/staff
overstep their role and act contrary to Resolution
11-979 and thereby fail to respect the
"separation of powers" by providing advice and/or options to
Council in staff comments to Notices of Motion?
Response Coordinator Legal Services:
The starting point in considering the question is
Resolution 11-979. That resolution provides "that supporting notes
and comments (from management) pertaining to notices of motion should not
include a specific formatted recommendation".
The motion was moved by Cr Tabart on 1 December 2011. The
motion was put to the vote and declared tied. The Mayor used her casting vote
and declared the motion carried.
The motion was brought forward by Cr Tabart in response to
the General Manager's answer to Mr Anderson's questions taken on notice from
the Ordinary Meeting of 20 October 2011.
The relevant words in resolution 11-979 are
“specific formatted recommendation”.
Cr Tabart’s motion sought "that supporting
notes and comments (from management) should not come with notices of
motion". That wording seemed to suggest that staff must not provide
commentary or information on any Notice of Motion in any form.
However the Councillor’s Background Notes to the
Notice of Motion provided that:
Removing the right of recommending such Notices
of Motion should in no way restrict the ability of staff to fully advise councillors
on the implications of Notices of Motion nor to recommend courses of action
that councillors may wish to consider ( e.g. 'as a result to these comments
councillors may wish to consider ...').
All that resolution 11-979 requires is that staff comments
not include a specific formatted resolution. That does not preclude staff
from fully advising councillors as to the implications of the Notice of
Motion nor to highlight for Councillor’s matters for consideration.
Those matters may be contrary to what is contained in the Notice of Motion.
In interpreting the meaning of resolution 11-979 the
following cases relating to statutory interpretation are of assistance.
Mills v Meeking (1990) 169 CLR 214, Dawson J
at 235:
“The literal rule of construction, whatever the
qualifications with which it is expressed, must give way to a statutory
injunction to prefer a construction which would promote the purpose of an Act
to one which would not, especially where that purpose is set out in the Act.
Engineers case (Amalgamated Society of Engineers
v Adelaide Steamship) (1920) 28 CLR 129 at 161-2 Higgins J:
“The fundamental rule of interpretation, to which
all others are subordinate, is that a statute is to be expounded according to
the intent of the Parliament that made it; and that intention has to be found
by an examination of the language used in the statute as a whole. The
question is, what does the language mean; and when we find what the language
means, in its ordinary and natural sense, it is our duty to obey that
meaning, even if we consider the result to be inconvenient or impolitic or
improbable.”
An application of the principles of these cases means that
resolution 11-979 is interpreted by specific reference to its words.
Interpretation is assisted by reference to the Councillor’s background
notes from which the intention behind the resolution is gleaned.
It is abundantly clear that the intent of the resolution
was to remove specific formatted recommendations but to preserve the ability
of staff to fully advise councillors on the implications of Notices of Motion
and even to go so far as to provide for consideration, courses of action that
councillors may wish to take on board.
The actions which the GM/staff presently undertake in
respect of Notices of Motion do not offend resolution 11-979 nor do they
stray into the area of contravening the separation of powers between the elected
body and the executive.
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uRGENCY MOTIONS
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Procedural
Motion
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17-315
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Resolved that the matter of rural industries food precinct
be discussed as a matter of urgency, the urgency being that the process to
consider the application will commence with JRPP meetings 17 August 2017, prior
to the next Ordinary Council meeting and any Council submission after that
date. (Richardson/Ndiaye)
The motion was put to the vote and declared carried.
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No. 1. Matter of
Urgency - Rural Industries Food Precinct
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17-316
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Resolved:
1. That
Council prepare a submission on the Development Application 10.2016.283.1-
Rural Industries Food Precinct.
2. That
a Council staff member (not involved in the assessment of the Development Application
in point 1) be requested to finalise a submission on behalf of Council
objecting to the Development Application 10.2016.283.1 on the following
grounds:
a) excessive
bulk and scale of buildings and infrastructure not in keeping with a rural and
local village setting.
b) failure
to provide clarity on the changing cost of the project to make it eligible
for JRPP consideration; and lack of certainty as to changes that have
exacerbated the cost increase; requiring either a need for an amended DA, or
an extended period of exhibition for public submissions
c) Traffic:
i) insufficient
information to enable an informed consideration of the traffic impacts, as
many activities and tenants are yet to be identified and the mix between car
and truck movements are yet to be known.
ii) failure
to provide clarity on the proposed road intersection treatment, including any
required land acquisitions.
d)
The wastewater treatment and disposal proposed within the DA represents
a significant environmental risk due to:
i) unsuitable
wastewater treatment and disposal proposal, potentially resulting in
substantial pollution of local groundwater and waterways, including Byron
Creek and the Wilson River
ii) failure
to outline how projected waste water loads are to have development and
operations licensed by the EPA, as per the Protection of the Environment
Operations Act (Schedule 1) and the EPA’s Licensing Guidelines.
iii) insufficient
waste water design configuration to provide for the removal of nutrients
(especially Nitrogen and Phosphorus) from the wastewater stream, posing
critical risks to the quality and health of groundwater and the waterways
which receive groundwater or surface runoff from the site. This is
particularly critical for Byron Creek given its low flow during periods of
limited rainfall (which make it strongly susceptible to eutrophication), and
its environmental value.
iv) failure
to consider odour emissions from the wastewater treatment facility
v) failure
to appropriately explain how part of the effluent disposal area within the 1
in 100 year flood zone could accommodate the proposed effluent loads
without saturation and subsequent run-off.
vi) a
lack of verification of the suitable irrigation rate based on the
characteristics of the actual soils present at the site.
e) failure
to adequately address impacts on nearby Koala and Platypus populations,
including dealing with potential threats to connectivity;
f) failure
to outline the need for such a large food industry precinct, as only two
tenants have been identified, calling into question the accuracy of defining
the DA as a food industry precinct.
5. That
the Council submission be finalised and submitted up to seven days before any
scheduled JRPP meeting on the Development Application. This submission to
include any other matters that may be pertinent to the consideration of the
Development Application by the JRPP in addition to those in point 2 above.
6. That
Council confirm a staff representative and the following individual Councillors:
Richardson, Lyon, Coorey and Cameron to be registered to address the planning
panel at the scheduled meeting of the JRPP to express the views of Council.
7. That
Council write to Ben Franklin MLC, Tamara Smith MLA, Justine Elliot MP, Walt
Secord MLC, Dawn Walker MLC and Gabrielle Upton MP, outlining the resolution
and request their support. (Richardson/Ndiaye)
The motion was put to the vote and declared carried.
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Procedural
Motion
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17-317
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Resolved that the matter of smart drum lines within the
Cape Byron Marine Park is discussed as a matter urgency, the urgency being
the installation of smart drum lines is scheduled to begin on August 12,
prior to the next Ordinary Council meeting. (Richardson/Ndiaye)
The motion was put to the vote and declared carried.
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No. 2 Matter
of Urgency - Smart Drum Lines within the Cape Byron Marine Park
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17-318
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Resolved that Council write to the Department of Primary Industries-Fisheries
to:
1. Thank them for seeking Council's
support for shark mitigation measures along the coastline within the Byron
Shire.
2. Reiterate Council’s support
(Resolution 17-275) for the trial of smart drum lines, with the installation
of lines within the Cape Byron Marine Park to be commenced outside of the
whale migration season (June/November) to ensure the safety of whales through
the marine park.
3. Reiterate its support for the use of
drone surveillance and any other surveillance programs as preferred
non-intrusive shark mitigation measures within Byron Shire.
4. Seek cost estimates for the proposed
smart drum line program within Byron Shire and drone surveillance program
particulars. (Richardson/Ndiaye)
The motion was put to the vote and declared carried.
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There being no further business the meeting concluded at 3.41pm.
I hereby certify that
these are the true and correct Minutes of this Meeting
as confirmed at
Council’s Ordinary Meeting on 24 August 2017.
….…………………………
Mayor Simon Richardson
