Ordinary Meeting
Public
ATTACHMENTS
EXCLUDED FROM THE
Ordinary
Meeting
AGENDA
OF 24 October 2019
9. Notices of Motion
9.3 Designing
Specialist Homeless Services for Women Masterclass
Attachment
1... Designing Specialist Homeless Services for Women - 2019.................... 3
10. Petitions
10.1 Request for
sealing of Poplar Avenue Mullumbimby due to disability access issues
Attachment
1... Petition from Linda Kinchela and Felicity Gaze regarding the state of the
road and footpath on Poplar Avenue Mullumbimby and effect it has for a disabled
person (34 signatures) (cc ~ Lathouras) Redated copy............................................ 10
11. Submissions and Grants
11.1 Council Grants
Report - 2 October 2019
Attachment
1... Attachment 1 - Grants Submitted............................................................ 15
13. Staff Reports
General Manager
13.1 Submission from
sea kayak sub-licensees for an additional 3rd tour on each day during NSW and
QLD school holidays
Attachment
1... Joint submission Go Sea Kayak and Cape Byron Kayaks for an additional 3rd
tour during NSW and QLD school holidays.................................................... 18
Attachment
2... Letter of support Cape Byron Marine Park for additional 3rd tour by sea
kayak sub-licenses.................................................................................................... 21
Corporate and Community Services
13.5 Report of the
Public Art Panel meeting held on 12 September 2019
Attachment
1... Minutes 12/09/2019 Public Art Panel....................................................... 22
13.8 Annual Report
2018/19
Attachment
1... Annual Report 2018/19............................................................................ 25
Infrastructure Services
13.10 Presentation of the Final
Bike Plan and PAMP for adoption
Attachment
1... 24.2017.50.1 - Byron Shire Bike Plan - Final for Adoption - September 2019 143
Attachment
2... 24.2017.51.1 - Byron Shire PAMP - Final for Adoption - September 2019 256
Attachment
3... Draft PAMP and Bike Plan - PE Submissions Sheet 1 - Actioned Changes 375
Attachment
4... Draft PAMP and Bike Plan - PE Submissions Sheet 2 - No Action Required 403
13.12 Suffolk Park Pump Track
Attachment
1... Survey_Responses_Report.pdf............................................................ 415
Attachment
2... Plan of Management Suffolk Park Recreation Grounds Adopted on 19 September
2019....................................................................................................... 451
Attachment
3... Suffolk Park Community Park CONCEPT 180313 email.pdf.............. 472
Attachment
4... Open Space and Recreation Needs Assessment and Action Plan attachment to
Council Report 13/12/2018.................................................................... 489
13.13 Request for new lease by
Mullumbimby Tennis Association Inc.
Attachment
1... Report to Reserve Trust Committee 21/11/13 Trust Licence to Mullumbimby
Tennis Association Inc over part Crown Reserve 31910 Mullumbimby Recreation
Grounds............................................................................................................... 579
Attachment
2... Copy of Report to Reserve Trust Committee 21 November 2013 (E2013 57645)
Licence to Mullumbimby Tennis Association Inc over part Crown Reserve 31910 Mullumbimby
Recreation Grounds - Attachment to report to ET 25 September 2019............................................................................................................... 586
Attachment
3... NSW Department of Industry Lease and Licence Crown Land Management Fact
Sheet downloaded 18 September 2019................................................ 593
13.14 2019-0057 - Supply and
delivery of Emulsion - Award of tender
Attachment
1... Confidential RFQ EX-1308 Recommendation Report -Supply & Delivery of
Emulsion to NRJO................................................................................. 596
14. Reports of Committees
Infrastructure Services
14.1 Report of the
Byron Shire Floodplain Risk Management Committee Meeting held on 24 September
2019
Attachment
1... Minutes 24/09/2019 Byron Shire Floodplain Risk Management Committee 610
14.2 Report of the
Transport and Infrastructure Advisory Committee Meeting held on 1 October 2019
Attachment
1... Minutes 01/10/2019 Transport and Infrastructure Advisory Committee
Extraordinary......................................................................................... 613
14.3 Report of the
Water, Waste and Sewer Advisory Committee Meeting held on 10 October 2019
Attachment
1... Minutes 10/10/2019 Water, Waste and Sewer Advisory Committee.... 616
Staff Reports - Infrastructure Services 13.13 - Attachment 1
|
Report No. 1.
|
Trust Licence to Mullumbimby
Tennis Association Inc over part Crown Reserve 31910 Mullumbimby Recreation
Grounds
|
Executive Manager: Corporate Management
Report Author: Leslie
Beardmore, Leasing and Licensing Coordinator
Andrew
Erskine, Superintendent Open Space
File No: #E2013/57645
|
Theme:
|
Corporate Management-Property, Procurements and Contract
Services
Community Infrastructure – Renew and Maintain
Existing Infrastructure
|
|
Summary:
|
In 1999 the Mullumbimby Tennis Association Inc constructed
the six (6) synthetic tennis courts, clubhouse and lighting on the
Mullumbimby Recreation Grounds.
The Club has continually upgraded the courts, lighting,
clubhouse and surrounds over past years.
At its Reserve Trust Committee Meeting on 31 October 2008
Council as Reserve Trust resolved [08-680] to enter into a five year Trust
Lease with the Club. That Trust Lease expires on 31 October 2013 and
the Club has requested an extension of tenure on similar terms and conditions
to the existing Trust Lease. NSW Trade and Investment Crown Lands
Division on behalf of the Minister for Regional Infrastructure and Services
has provided in principle support for a Trust Licence for a term of up to ten
(10) years.
|
RECOMMENDATION:
1. That
the Reserve Trust not call tenders or conduct a similar competitive process to
grant a trust licence over part Lot 389 DP 728162 being part Crown Reserve
31910 Mullumbimby Recreation Grounds, but instead direct negotiate with
Mullumbimby Tennis Association Incorporated for the following reasons:
· Mullumbimby
Tennis Association Incorporated is a community based incorporated not for
profit organisation
· the land is
zoned 6 (a) open space zone
· the land is a
Crown Reserve for purpose of public recreation
· the expenditure
the organisation has, and continues to spend, in building, maintaining and
upgrading the tennis facility.
2. That
Council, as Reserve Trust Manager, grant a trust licence to Mullumbimby Tennis
Association Inc over part Lot 389 DP 728162 substantially in the form at
Annexure 1(d) (#E2013/64325) on the following terms, subject to Ministerial
consent:
a) Term
of five (5) years commencing 1 December 2013;
b) Rent
$446.00 per annum excluding GST
c) Rent
rebate $6,154.00 per annum excluding GST (Calculated on basis of Market rent
$6,600.00 per annum ex GST less Crown minimum rent $446.00 per annum excluding
GST);
d) Licence
fee and rent rebate to be adjusted accordingly if Crown minimum rent increases
prior to commencement date of the licence; and
e) Licensee
to pay for all services, running costs and maintenance.
3. That
Council, as Reserve Trust Manager, authorise the General Manager to execute and
affix the Seal to the 5-year Trust Licence with Mullumbimby Tennis Association
Inc over part Lot 389 DP 728162 in accordance with Local Government (General)
Regulations 2005.
4. That
Council, as Reserve Trust Manager, authorise the General Manger to apply to the
Crown Lands Division of NSW Trade and Investment for Ministerial consent to
exercise the holding over clause in the current Trust Lease.
Attachments:
·... Letter from Mullumbimby Tennis Assoc Inc #S2013/8852
[1 page]..................................... Annexure 1(a)
· Email from NSW Trade and Investment Crown Lands
Division #E2013/63928 [2 pages]...... Annexure 1(b)
· Current market rental valuation #E2013/65504 [75
pages]................................................... Annexure 1(c)
· Draft Trust Licence #E2013/64325 [29 pages]................................................................... Annexure
1(d)
Annexure 1(c) and
1(d): Due to the size of this document it has been provided on the
Councillors' Agenda CD only; an electronic copy can be viewed on Council's
website and a hard copy available at access points throughout the Shire.
Report
Land Information
Part Crown Reserve R31910 being part Lot 389 DP 728162 being
tennis courts and clubhouse part of Mullumbimby Recreation Grounds, Stuart
Street, Mullumbimby.
Owner – NSW Trade and Investment (Crown Lands)
Reserve Trust – Mullumbimby (D540006) Reserve Trust
Trust Manager – Byron Shire Council
Gazetted – 22/12/00
Gazetted purpose - public recreation
LEP Zone – 6(a) Open Space Zone
In 1999 the Mullumbimby Tennis Association Inc known as
Mullumbimby Tennis Club (the “Club”) constructed the six (6)
synthetic tennis courts, clubhouse and lighting on the Mullumbimby Recreation Grounds.
The construction was funded by s.94 contribution of $50,000 from Council, Club
fundraising of $70,000 and a bank loan obtained by the Club of $141,000.
The bank loan was successfully repaid within the 10 year loan term.
In 2008 the Association resurfaced the six (6) courts funded
by a grant from the Department of Sport and Recreation of $14,000, Club
fundraising of $6,000, funding from Council of $34,000 and a bank loan obtained
by the Club of $54,000 (for which Council acted as guarantor). The bank
loan was repaid ahead of schedule.
The Club has continually upgraded the courts, lighting,
clubhouse and surrounds over past years. All management and maintenance
is carried out by the Club on a voluntary basis to ensure the courts are in
prime playing condition.
At its Reserve Trust Committee Meeting on 31 October 2008
Council as Reserve Trust considered a report titled “3.2 Lease To
Mullumbimby Tennis Association” (http://www.byron.nsw.gov.au/meetings/2008-10-31-trust)
and resolved [08-680]:
“1. That, subject to Ministerial approval, Council,
as the Reserve Trust Manager, authorise the General Manager to enter into a
lease over part Lot 389 DP 728162 with the Mullumbimby Tennis Association based
on the following terms:
a. Term of five years
b. Annual lease fee based on the minimum Crown rent
provided by the Crown Lands Act 1989 and Crown Lands Regulations 2006
c. All lease preparation costs are to be met by the
tenant
d. Maintenance to be carried out by the tenant at the
tenant’s cost
e. Provision of public liability insurance.
2. That Council authorise the General Manager to affix
the Council Seal to the new lease over part Lot 389 DP 728162 in accordance
with Regulation 400 of the Local Government (General) Regulations 2005.”
A Trust Lease was subsequently entered into for a five (5)
year period. That Trust Lease expires on 31 October 2013.
In a letter dated 15 July 2013 Mullumbimby Tennis
Association Inc requested an extension of their tenure at the facility upon
expiry of their current Trust Lease under similar terms and conditions of the
existing Trust Lease (refer Annexure 1(a)).
The Reserve Trust should note that there are additional plan
requirements, under provisions of the Real Property Act 1900, for the leasing
of part of a parcel of land for a term of five (5) years or less. It is
preferable in this instance to consider the issue of a Trust Licence for the
ongoing tenure by the Club.
The Club’s request for extension of tenure was
submitted to NSW Trade and Investment Crown Lands Division for their
consideration. In an email dated 1 October 2013 (Annexure 1(b)) the Crown
provided in principal support to the issue of a Trust Licence for Clubhouse and
Courts for a term of up to ten (10) years.
A draft Trust Licence for a term of five (5) years has been
prepared (Annexure 1(d)) for the Reserve Trust’s consideration including
the following special conditions:
1. Casual hirers are required to complete the Licensor’s
“Checklist for Casual Hirers” form prior to being given access to
the facility by the Licensee.
As a new Trust tenure has not been executed prior to the
expiry of the current Trust Lease, the continued occupation of the premises by
the Club can be authorised by exercising the holding over clause in the current
Trust Lease. The Club has confirmed their agreement to exercise the
holding over clause. Crown Lands require the Reserve Trust’s formal
request to exercise the holding over clause before they will provide
Minister’s consent to same. This is provided for in Recommendation
4.
A current market rental valuation (Annexure 1(c)) has been
undertaken in accordance with the Crown’s request to apply a market
rental with an appropriate rebate and has assessed the current market rental as
$6,600.00 per annum excluding GST.
In addition to the valuation, the valuer commented that
“the figures determined are quite low due to the ongoing cost of
refurbishment/replacement as set out in the proposed licence. If funding
for the ongoing cost of refurbishment/replacement was more secure then the rent
may be higher, particularly if justified by a higher turnover.”
The valuation assumes that no rates or land tax
contributions are currently levied on the subject premises and that this will
remain unchanged under the proposed licence.
Councils current maintenance of this facility
The tennis club have proved to be self managing, with all
upgrades and maintenance organised by their committee. The standard of the facility
is high with best practice processes used in the maintenance of the courts. For
Council’s Community Infrastructure department, this is an ideal situation
where intervention and draw on Council resources is virtually nil while the
community benefits from the well run and resourced centre.
The recently endorsed Sports Field User Policy will have no
impact on current management of the facility as tennis courts were specifically
excluded from the policy via resolution.
If opportunities for sponsorship were presented to the club
resultant funds should be channelled back into the maintenance of the facility.
Financial Implications
The Reserve Trust rental income will be limited to Crown Land minimum for the term of the licence. All rental rebates are recorded and
reported to Crown Lands under the financial reporting requirements of the Trust
Handbook.
As part of their request for extension of tenure, the
Mullumbimby Tennis Association Inc has offered to continue to pay for services
and maintenance.
Statutory and Policy Compliance Implications
The land is a Crown Reserve, the purpose for which it is
reserved being public recreation. Council, as Reserve Trust Manager, is
only allowed to lease or licence the property in accordance with that purpose.
Crown Lands Act 1989 No 6
102 Consent of Minister to sale, lease,
easement, licence or mortgage
(1) A
reserve trust may not sell, lease or mortgage land, or grant an easement or a
licence (except a temporary licence) in respect of land, comprising the whole
or any part of the reserve unless:
(a) the
trust has decided that it is desirable to do so on the terms and conditions
specified in the decision,
(b) in
the case of a proposed sale, the trust has caused a notice to be published in a
newspaper circulating in the locality of the land setting out the date and the
terms and conditions of the trust’s decision, the location of the land
and other prescribed particulars,
(c) the
trust has (in the case of a proposed sale, not earlier than 14 days after the
publication of the newspaper notice) applied to the Minister in writing for
consent, giving full details of the proposal, and
(d) the
Minister has consented in writing to the proposal.
(2) The Minister may not give a
consent under subsection (1) (d) to:
(a) a
sale,
(b) a
lease for a term exceeding 5 years, or
(c) a
lease for a term that, by the exercise of an option, could exceed 5 years,
unless at least 14 days have
elapsed since notice of intention to give the consent has been published in a
newspaper circulating in the locality in which the land is situated or in a
newspaper circulating generally in the State.
(3) The
Minister’s consent may relate to the whole or part only of the land with
which the application is concerned.
(4) If
the application for consent proposes a sale, lease, easement or licence, the
Minister’s consent:
(a) may
be general, authorising the proposal subject to such conditions, restrictions,
reservations and covenants, and in such manner and within such time, as the
Minister thinks desirable, or
(b) may
be specific, approving of a particular contract of sale, lease or licence.
(5) If
the application for consent relates to a mortgage, the Minister’s consent
can only be given to the specific terms of the mortgage.
(6) In giving consent, the Minister
may:
(a) vary
the terms and conditions to which the sale, lease, easement, licence or
mortgage is to be subject, and
(b) impose
such other terms and conditions as the Minister thinks desirable.
(7) The
Minister may, at any time, wholly or partly withdraw the consent or vary its
terms, but only if to do so would not prejudice the rights of third parties.
Crown Lands Division – Rent concessions and
hardship relief for Crown land tenure holders
Rebates apply to annual market rentals and are subject to
meeting eligibility criteria. Under the Crown Lands Act 1989, the level
of rebate granted cannot fall below the statutory minimum rent and is subject
to quarterly CPI adjustments.
Under the regulation the following holders who may be
granted a rebate of rent are defined as:
a) an eligible pensioner whose
holding is occupied as his or her sole place of residence (or is an adjunct to
that place of residence) and is not used for any commercial purpose
b) a community service, sporting
or recreational organisation:
i)
that is a holder of an authority under the Charitable Fundraising Act 1991, or
ii)
that is incorporated under the Associations Incorporation Act 1984, or
iii)
that the Minister is satisfied is a non-profit organisation, whose holding is
used as a help or service facility of benefit to the general community or as an
active sporting, passive recreational or youth advancement facility of general
benefit to a local community.
Such
organisations must comply with the following criteria in order to be considered
for a rebate of market rental. They must be:
· using
the holding for the specified purpose, and
· clearly
demonstrate the activities of the organisation are of benefit to the welfare of
the community to justify a rebate of market rental.
c) an owner or occupier of
residential property that is accessible only by water and whose holding
contains a structure that is used for the purposes of obtaining access to the
property and is not used for any commercial purpose
d) a local council whose
holding is used to provide facilities, without charge, for the benefit of the
general community.
Level of Rebate
Eligible pensioners whose holding is their sole place of
residence are entitled to a 50% rebate of market rent provided the statutory
minimum rent is met.
Community service, sporting and recreation organisations may
be eligible to receive a rebate of up to 50% of market rent, depending on the
nature of their operations. Rebates for these organisations are
considered on a case-by-case basis.
The Department of Lands Trust Handbook March 2007
“14.5 How Reserve Trusts prepare a Lease or
Licence”
Other Points to be kept in Mind: – at page 14-9
“Rent should reflect a commercial approach, having
regard to the purpose of the lease, site value and ownership of existing
improvements. Reserve trusts are encouraged to seek advice from the Local
Department of Lands office or have an independent valuation undertaken to
determine the market rent of the proposed lease site.”
“Where nominal rental is imposed because the
lessee/licensee is a charitable or non-profit organisation, such rental should
generally not be less than the statutory minimum rental (currently $425.00 per
annum) applicable to tenures under the Crown Lands Act 1989. The discount
given to the lessee/licensee is to be specified in the agreement.”
“14.6 Content of the document”
Rent and Rent Review: - at page 14-10
“The rent or licence fee should normally be a
commercial market rent.
Relevant factors to consider include:
· The
permitted use under lease
· The
value of the part of the reserve being used
· Who
owns the building or improvements to be used by the lessee
· Costs
to be incurred by the trust.”
Local Government Act 1993
Section 55 of the Local Government Act, 1993 – What
are the requirements for tendering? At (3) specifically states that the
tendering requirements do not apply to the following contracts:
“a contract for the leasing or licensing of land by
the council, other than the leasing or licensing of community land for a term exceeding
5 years to a body that is not a non-profit organisation”.
ICAC Guidelines
An open competitive selection process such as a tender or
expression of interest process enables Council to demonstrate accountability
and transparency and makes it difficult for private interests to influence, or
be seen as influencing the outcome of a contract.
The “ICAC Guidelines for managing risks in
direct negotiations, May 2006”, states
“It is not acceptable to automatically reappoint an
incumbent whose fixed term contract is about to expire.”
“Doing business with government is a key driver of
economic activity and many private firms and not-for-profit organisations rely
on access to government contracts in order to stay in business. Direct
negotiations can unfairly exclude capable firms and employ staff, pay taxes and
contribute to the economy.”
“Obtaining best value for public money is a
fundamental principle of public sector work. When it is known that
there are other proponents who could feasibly compete for a contract, agreeing
to direct negotiations with a single proponent increases the risk that the
agency may not obtain best value for money. When a proponent does not
have to compete for contracts there is a higher risk that the proponent may
unjustifiably increase profit margins, exaggerate expenses or otherwise boost
returns on the contract.”
“Furthermore, when an agency restricts the number
of parties with which it does business, it also limits the number of potentially
useful ideas, solutions and options that it has access to.”
Local Government (General) Regulations 2005
Under the Local Government (General) Regulations 2005, Part
13, Division 1, paragraph 400 (4), the seal of a council must not be affixed to
a document unless the document relates to the business of the council and the
council has resolved (by resolution specifically referring to the document)
that the seal be so affixed.
