Byron Shire Reserve Trust Committee Meeting
Thursday, 21 September 2017
held at Council Chambers, Station Street, Mullumbimby
commencing at 2.00pm
Public Access relating to items on this Agenda can be made at 2pm on the day of the Meeting. Requests for public access should be made to the General Manager or Mayor no later than 12.00 midday on the day prior to the Meeting.
What is a “Conflict of Interests” - A conflict of interests can be of two types:
Pecuniary - an interest that a person has in a matter because of a reasonable likelihood or expectation of appreciable financial gain or loss to the person or another person with whom the person is associated.
Non-pecuniary – a private or personal interest that a Council official has that does not amount to a pecuniary interest as defined in the Local Government Act (eg. A friendship, membership of an association, society or trade union or involvement or interest in an activity and may include an interest of a financial nature).
Remoteness – a person does not have a pecuniary interest in a matter if the interest is so remote or insignificant that it could not reasonably be regarded as likely to influence any decision the person might make in relation to a matter or if the interest is of a kind specified in Section 448 of the Local Government Act.
Who has a Pecuniary Interest? - a person has a pecuniary interest in a matter if the pecuniary interest is the interest of the person, or another person with whom the person is associated (see below).
Relatives, Partners - a person is taken to have a pecuniary interest in a matter if:
§ The person’s spouse or de facto partner or a relative of the person has a pecuniary interest in the matter, or
§ The person, or a nominee, partners or employer of the person, is a member of a company or other body that has a pecuniary interest in the matter.
N.B. “Relative”, in relation to a person means any of the following:
(a) the parent, grandparent, brother, sister, uncle, aunt, nephew, niece, lineal descends or adopted child of the person or of the person’s spouse;
(b) the spouse or de facto partners of the person or of a person referred to in paragraph (a)
No Interest in the Matter - however, a person is not taken to have a pecuniary interest in a matter:
§ If the person is unaware of the relevant pecuniary interest of the spouse, de facto partner, relative or company or other body, or
§ Just because the person is a member of, or is employed by, the Council.
§ Just because the person is a member of, or a delegate of the Council to, a company or other body that has a pecuniary interest in the matter provided that the person has no beneficial interest in any shares of the company or body.
Disclosure and participation in meetings
§ A Councillor or a member of a Council Committee who has a pecuniary interest in any matter with which the Council is concerned and who is present at a meeting of the Council or Committee at which the matter is being considered must disclose the nature of the interest to the meeting as soon as practicable.
§ The Councillor or member must not be present at, or in sight of, the meeting of the Council or Committee:
(a) at any time during which the matter is being considered or discussed by the Council or Committee, or
(b) at any time during which the Council or Committee is voting on any question in relation to the matter.
No Knowledge - a person does not breach this Clause if the person did not know and could not reasonably be expected to have known that the matter under consideration at the meeting was a matter in which he or she had a pecuniary interest.
Participation in Meetings Despite Pecuniary Interest (S 452 Act)
A Councillor is not prevented from taking part in the consideration or discussion of, or from voting on, any of the matters/questions detailed in Section 452 of the Local Government Act.
Non-pecuniary Interests - Must be disclosed in meetings.
There are a broad range of options available for managing conflicts & the option chosen will depend on an assessment of the circumstances of the matter, the nature of the interest and the significance of the issue being dealt with. Non-pecuniary conflicts of interests must be dealt with in at least one of the following ways:
§ It may be appropriate that no action be taken where the potential for conflict is minimal. However, Councillors should consider providing an explanation of why they consider a conflict does not exist.
§ Limit involvement if practical (eg. Participate in discussion but not in decision making or vice-versa). Care needs to be taken when exercising this option.
§ Remove the source of the conflict (eg. Relinquishing or divesting the personal interest that creates the conflict)
§ Have no involvement by absenting yourself from and not taking part in any debate or voting on the issue as if the provisions in S451 of the Local Government Act apply (particularly if you have a significant non-pecuniary interest)
Clause 375A of the Local Government Act 1993 – Recording of voting on planning matters
(1) In this section, planning decision means a decision made in the exercise of a function of a council under the Environmental Planning and Assessment Act 1979:
(a) including a decision relating to a development application, an environmental planning instrument, a development control plan or a development contribution plan under that Act, but
(b) not including the making of an order under Division 2A of Part 6 of that Act.
(2) The general manager is required to keep a register containing, for each planning decision made at a meeting of the council or a council committee, the names of the councillors who supported the decision and the names of any councillors who opposed (or are taken to have opposed) the decision.
(3) For the purpose of maintaining the register, a division is required to be called whenever a motion for a planning decision is put at a meeting of the council or a council committee.
(4) Each decision recorded in the register is to be described in the register or identified in a manner that enables the description to be obtained from another publicly available document, and is to include the information required by the regulations.
(5) This section extends to a meeting that is closed to the public.
Byron Shire Reserve Trust Committee
1. Public Access
4. Staff Reports
Corporate and Community Services
4.1 Durrumbul school consent to lodge Development Application......................................... 4
4.2 Compulsory Acquisition of Lot 389 DP 728537, Lot 390 DP 728538 and Lots 391-393 DP 728539 Butler Street Reserve Byron Bay................................................................................... 32
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 Durrumbul school consent to lodge Development Application
Directorate: Corporate and Community Services
Report Author: Paula Telford, Leasing and Licensing Coordinator
File No: I2017/1136
Theme: Society and Culture
The Durrumbul Preschool has received grant funding from NSW Department of Education to undertake building works which will improve service delivery to children and their families. To permit the Preschool to proceed to obtain owners consent from the Department of Industry, Lands and Forestry, Council as the Reserve Manager must provide clear support to the lodgement of an application for owners consent.
That Council as the Durrumbul (R55796) Public Recreation Reserve Trust.
a) Support the Development Application for a fixed covered awning over the play area; extension of the existing office by enclosing the veranda and provision of a disability compliant walkway to the building
b) Authorise the General Manager to provide a letter of support to the Durrumbul Community Preschool Association to apply for owners consent to lodge the Development Application.
Reserve: R55796 Lot 5 DP 832186
Purpose: Public Recreation
Owner: Department of Lands (Crown Land)
Trust Manager: Durrumbul (R55796) Public Recreation Reserve Trust.
No Plan of Management
Licensee: Durrumbul Community Pre-School Association (‘the Pre-School’).
On 1 July 2014 the Pre-School entered into a Crown approved licence with the Durrumbul (R55796) Public Recreation Reserve Trust for the permitted use of Community Pre-school. The licence fee is based on minimum Crown rent and is currently $517.00 per annum. The licence is for a term of ten (10) years to 30 June 2024.
Lot 5 DP 832186 is Crown land and managed by Council as a Reserve Trust. Council has no legislative authority to provide owner’s consent required for development consent. Consent must be obtained from the Department of Industries Lands and Forestry, (‘the Department’).
Reserve Trust support
To permit the Preschool to proceed to obtain owners consent from the Department of Industry – Lands and Forestry, Council as the Reserve Manager must provide clear support to the lodgement of an application for owners consent.
The Preschool has been given a Community Outreach Grant from NSW Department of Education
For the following works:
· Construction of a fixed covered awning over an existing play area. This will provide additional wet weather cover as well as protection from the sun.
· Extension of the existing office by closing in a 3 x 3 meter section of the veranda. The character of the building will be maintained by means of recycling the original weatherboards, window and architraves.
· Replacement of structural bearers, footings and decking boards and fitting galvanised square hollow section steel sleeves to enable the existing handrail to be reinstalled. Rectify the grade of the ramp to meet the Building Code of Australia disability access requirements.
The conditions set out by the Department of Education require all works to be carried out when children are not on the premises, either outside of school hours or school holidays. Given the scope of works, school holidays are preferred.
This report recommends that Council as the Durrumbul (R55796) Public Recreation Reserve Trust both:
a) Support for the Development Application to undertake the scope of works including a fixed covered awning over the play area; extending the existing office by enclosing the veranda and provision of a disability compliant walkway to the building as outlined in the attached Statement of Environmental Effects.
b) Authorises the General Manager to provide a letter of support for an application to the Department of Industry Lands and Forestry for owner’s consent, as owner, to lodge the Development Application.
Statutory and Policy Compliance Implications
Crown Lands Act 1986 (NSW)
s 92 Reserve trusts
(1) The Minister may, by notification in the Gazette, establish and name a reserve trust and appoint it as
trustee of any one or more specified reserves or any one or more parts of a reserve.
(2) A reserve trust established under subsection (1) is constituted by this Act as a corporation having as its
corporate name the name assigned to the trust in the notification of its establishment.
(3) The Minister may, by notification in the Gazette:
(a) dissolve a reserve trust, or
(b) alter the corporate name of a reserve trust, or
(c) revoke the appointment of the reserve trust as trustee of any one or more specified reserves or any one or more parts of a reserve.
(4) A reserve trust has the functions conferred on it by or under this Act.
(5) A reserve trust is charged with the care, control and management of any reserve (or any part of a reserve) of which it is appointed trustee.
(6) The affairs of a reserve trust are to be managed:
(a) by the Minister, or
(b) if a trust board is appointed under section 93—by the trust board, or
(c) if a corporation is appointed under section 95—by the corporation, or
(d) if an administrator is appointed under section 117—by the administrator.
(6A) In this Division, a reference to a reserve trust manager is a reference to the Minister (to the extent that the Minister is responsible for managing the affairs of a reserve trust), or any such trust board, corporation or administrator.
(6B) There can be more than one reserve trust manager for a reserve trust with the function of managing the affairs of the reserve trust allocated between them by the Minister in accordance with the following provisions:
(a) The Minister can allocate the exercise of functions in respect of different aspects of the affairs of the reserve trust or different parts of the reserve to different reserve trust managers, as specified in the allocation or as determined by the Minister, with those functions to be exercised in accordance with such arrangements (if any) as may be determined by the Minister.
(b) The Minister is the reserve trust manager for any aspect of the affairs of a reserve trust or any part of the reserve not allocated to another reserve trust manager and is accordingly allocated the function of managing the affairs of the reserve trust in respect of any such unallocated aspects of those affairs or unallocated parts of the reserve.
(c) A reserve trust manager has the function of managing the affairs of the reserve trust only to the extent of the allocated functions and is, for the purposes of this or any other Act or law, the reserve trust manager to that extent only.
( (6C) Subsections (6)–(6B) do not apply 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.
(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.
Environmental Planning & Assessment Act 1979 (NSW)
s 78A Application
(1) A person may, subject to the regulations, apply to a consent authority for consent to carry out development.
Section 380AA of the Mining Act 1992 provides that an application for development consent to mine for coal can only be made by or with the consent of the holder of an authority under that Act in respect of coal and the land concerned.
(2) A single application may be made in respect of one or more of the types of development referred to in paragraphs (a)–(f) of the definition of development in section 4 (1).
(3) If the consent authority is a council, a person (other than the Crown or a person acting on behalf of the Crown) may, in the same development application, apply for development consent and approval for anything that requires approval under the following provisions of the Table to section 68 of the Local Government Act 1993, namely:
paragraph 1 of Part A
paragraph 1–6 of Part B
paragraph 1–5 of Part C
paragraph 1 of Part E
paragraph 1–5 or 10 of Part F.
(4) In determining a development application to which subsection (3) applies, the council may apply any of the provisions of or under the Local Government Act 1993 that it could apply if the development application were an application under that Act for the relevant approval. In particular, if development consent is granted, the council may impose a condition that is authorised under that Act to be imposed as a condition of an approval.
(5) If development consent is granted to a development application to which subsection (3) applies, the council is taken to have granted the relevant approval under the Local Government Act 1993 that authorises the activity, but that Act has no application to the approval so taken to have been granted.
(6) In granting development consent to a development application to which subsection (3) applies, the council may, without limiting any other condition it may impose, impose, in relation to the approval taken to have been granted under the Local Government Act 1993, either or both of the following conditions:
(a) a condition that the approval is granted only to the applicant and does not attach to or run with the land to which it applies,
(b) a condition that the approval is granted for a specified time.
(6A) The functions of a council under subsections (3)–(6) in relation to a development application may be exercised by a local planning panel or delegate that has the function of determining the development application on behalf of the council.
(7) A development application cannot be made in respect of land that is, or is part of, a wilderness area (within the meaning of the Wilderness Act 1987) unless any consent to the development required under that Act has been obtained.
(8) A development application (other than an application in respect of State significant development) must be accompanied by:
(a) if the application is in respect of designated development—an environmental impact statement prepared by or on behalf of the applicant in the form prescribed by the regulations, or
(b) if the application is in respect of development on land that is, or is a part of, critical habitat or is likely to significantly affect threatened species, populations or ecological communities, or their habitats—a species impact statement prepared in accordance with Division 2 of Part 6 of the Threatened Species Conservation Act 1995.
Part 7A of the Threatened Species Conservation Act 1995 provides for certain circumstances in which development is taken not to significantly affect threatened species, populations or ecological communities, or their habitats.
(8A) A development application for State significant development is to be accompanied by an environmental impact statement prepared by or on behalf of the applicant in the form prescribed by the regulations.
(9) The regulations may specify other things that are required to be submitted with a development application.
Environmental Planning & Assessment Regulations 2000 (NSW)
cl 49 Persons who can make development applications
(cf clause 46 of EP&A Regulation 1994)
(1) A development application may be made:
(a) by the owner of the land to which the development application relates, or
(b) by any other person, with the consent in writing of the owner of that land.
(2) Subclause (1) (b) does not require the consent in writing of the owner of the land for a development application made by a public authority or for a development application for public notification development if the applicant instead gives notice of the application:
(a) by written notice to the owner of the land before the application is made, or
(b) by advertisement published in a newspaper circulating in the area in which the development is to be carried out no later than 14 days after the application is made.
(3) Despite subclause (1), a development application made by a lessee of Crown land may only be made with the consent in writing given by or on behalf of the Crown.
(3A) Despite subclause (1), a development application made in respect of land owned by a Local Aboriginal Land Council may be made by a person referred to in that subclause only with the consent of the New South Wales Aboriginal Land Council.
(4) Subclause (3) does not require the consent of the Crown if the development application is for State significant development made by a public authority or public notification development.
(5) In this clause:
public authority includes an irrigation corporation within the meaning of the Water Management Act 2000 that the Minister administering that Act has, by order in writing, declared to have the status of a public authority for the purposes of this clause in relation to development of a kind specified in the order.
public notification development means:
(i) State significant development set out in clause 5 (Mining) or 6 (Petroleum (oil and gas)) of Schedule 1 to State Environmental Planning Policy (State and Regional Development) 2011 but it does not include development to the extent that it is carried out on land that is a state conservation area reserved under the National Parks and Wildlife Act 1974, or
(ii) State significant development on land with multiple owners designated by the Secretary for the purposes of this clause by notice in writing to the applicant for the State significant development.
Staff Reports - Corporate and Community Services 4.2
Directorate: Corporate and Community Services
Report Author: Paula Telford, Leasing and Licensing Coordinator
File No: I2017/1265
Theme: Corporate Management
Council holds a section 34A of the Crown Lands Act 1989 (NSW) a licence RI 574216 over Lot 389 DP 728537, Lot 390 DP 728538 and Lot 391 DP 728539, known as the Butler Street Reserve. Clause 61 of the licence requires Council to compulsory acquire land under licence prior to expiry of the licence on 7 April 2018.
Lot 389 DP 728537, Lot 390 DP 728538 and Lot 391 DP 728539 is managed by Council as the Reserve Trust Manager of the Byron Bay (R88993) Reserve Trust.
Support from the Reserve Trust is required to enable Council to proceed with the proposed acquisition.
That Council as the Reserve Trust Manager of Reserve (R88993)
a) Support the proposed acquisition of Lot 389 DP 728537, Lot 390 DP 728538 and Lots 391-393 DP 728539; and
b) Authorise the General Manager to provide a letter of response to the Department of Industry Lands
Council holds a current section 34A of the Crown Lands Act 1989 (NSW) licence RI574216 over Lot 389 DP 728537, Lot 390 DP 728538 and Lot 391 DP 728539 known as the ‘Butler Street Reserve’ for the purpose of car parking and investigation.
Lot 389 DP 728537, Lot 390 DP 728538 and Lot 391 DP 728539 is managed by Council and the Reserve Trust Manager of Byron Bay (R88993).
In accordance with clause 61 of licence RI574216 Council must compulsory acquire land identified in the licence, pursuant to the Land Acquisition (Just Terms Compensation) Act 1991 (NSW) prior to the expiry date of the licence. Licence RI574216 expires on 7 April 2018.
On 22 June 2017 Council resolved (17-267) as follows:
1. That Council proceed to acquire land parcels included in R88993:
Lot 389 DP 28537
Lot 390 DP 728538
Lot 391 DP 728539
Lot 392 DP 28539
PT Lot 393 DP 728539
subject to agreement being reached to the satisfaction of both Council and the landowner on the amount of compensation payable
2. That Council authorise the General Manager in consultation with the Mayor to take the necessary steps to proceed with the land acquisition, including but not limited to:
a) negotiation with the landowner regarding the amount of compensation payable to reach agreement to the satisfaction of both Council and the landowner, and
b) affixing the Council seal to all necessary documents that effect the acquisition
Council, in implementing the resolution, is negotiating with the Department of Industry Lands (‘the Department’) to compulsory acquire the land parcels.
The Department requires Council to notify the Reserve Trust Manager of Byron Bay (R88993) of the proposed acquisition and to obtain support from the Reserve Trust to proceed with the acquisition.
Support from the Reserve Trust must then be forwarded to the Department to proceed the proposed acquisition.
Statutory and Policy Compliance Implications
Land Acquisition (Just Terms Compensation) Act 1991 (NSW)
1 s1 Notice of intention to acquire land by compulsory process
(1) An authority of the State may not acquire land by compulsory process unless the authority has given the owners of the land written notice of its intention to do so.
(2) The authority of the State is not prevented from acquiring the land by agreement after giving the proposed acquisition notice.
s29 Acquisition of Crown land
(1) Land may be compulsorily acquired by an authority of the State under this Act even though it is Crown land.
(2) If Crown land is subject to a dedication or reservation that (by virtue of any Act) cannot be removed except by an Act, that land may not be compulsorily acquired. However, this prohibition does not apply if the dedication or reservation is not affected by the compulsory acquisition of the land.
(3) Nothing in this Act affects the acquisition by agreement of Crown land by an authority of the State.
(4) The provisions of Division 1 (Pre-acquisition procedures) and Part 3 (Compensation for acquisition of land) do not apply to the compulsory acquisition of Crown land if the owners of the land have agreed on all relevant matters concerning the compulsory acquisition and the compensation (if any) to be paid for the acquisition.