Agenda of Byron Shire Floodplain Risk Management Committee Meeting

CONFLICT OF INTERESTS

What is a “Conflict of Interests” - A conflict of interests can be of two types:

Pecuniary - an interest that a person has in a matter because of a reasonable likelihood or expectation of appreciable financial gain or loss to the person or another person with whom the person is associated.

Non-pecuniary – a private or personal interest that a Council official has that does not amount to a pecuniary interest as defined in the Code of Conduct for Councillors (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 the Code of Conduct for Councillors.

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.

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 of the provisions in the Code of Conduct (particularly if you have a significant non-pecuniary interest)

RECORDING OF VOTING ON PLANNING MATTERS

Clause 375A of the Local Government Act 1993 – Recording of voting on planning matters

(1) In this section, planning decision means a decision made in the exercise of a function of a council under the Environmental Planning and Assessment Act 1979:

(a) including a decision relating to a development application, an environmental planning instrument, a development control plan or a development contribution plan under that Act, but

(b) not including the making of an order under that Act.

(2) The general manager is required to keep a register containing, for each planning decision made at a meeting of the council or a council committee, the names of the councillors who supported the decision and the names of any councillors who opposed (or are taken to have opposed) the decision.

(3) For the purpose of maintaining the register, a division is required to be called whenever a motion for a planning decision is put at a meeting of the council or a council committee.

(4) Each decision recorded in the register is to be described in the register or identified in a manner that enables the description to be obtained from another publicly available document, and is to include the information required by the regulations.

(5) This section extends to a meeting that is closed to the public.

BYRON SHIRE COUNCIL

Staff Reports - Infrastructure Services 4.1

Staff Reports - Infrastructure Services

Report No. 4.1 Minutes of previous Byron Shire Floodplain Risk Management Committee Meeting

Directorate: Infrastructure Services

Report Author: Dominika Tomanek, Executive Assistant Infrastructure Services

File No: I2020/431

Summary:

The previous minutes of Byron Shire Floodplain Risk Management Committee Meeting are attached to the report.

RECOMMENDATION:

That Committee note the report.

Attachments:

1 Minutes 26/11/2019 Byron Shire Floodplain Risk Management Committee, I2019/1928 , page 6⇩

REPORT

The minutes of the Byron Shire Floodplain Risk Management Committee Meeting held on 26 November 2019 are attached. The minutes were reported to the 12 December 2019 Council Meeting which resulted in resolutions 19-669.

19-669

Resolved: that Council adopt the following Committee Recommendation(s):

Report No. 4.1 North Byron Floodplain Risk Management Study Draft Document

File No: I2019/1832

Committee Recommendation:

1. That Council support the public exhibition of the Draft North Byron Floodplain Risk Management Study Attachment 1 and 2 (E2019/83311 and E2019/83313) from 20 January to 21 February 2020.

2. That Council delegate staff the authority to make minor amendments to the Draft North Byron Floodplain Risk Management Study documents, in consultation with support from the Floodplain Management Committee, prior to it going on public exhibition in January 2020.

(Lyon/Spooner)

Legal/Statutory/Policy Considerations

N/A

Financial Considerations

N/A

Consultation and Engagement

N/A

Minutes of the Byron Shire Floodplain Risk Management Committee Meeting held on Tuesday, 26 November 2019

File No: Error! Unknown document property name.

PRESENT: Cr A Hunter and Cr M Lyon

Staff: James Flockton (Flood and Drainage Engineer)

Dominika Tomanek (Minute Taker)

Invited Members: Peter Mair (SES), and Martin Rose (Environment and Heritage), Karl Allen

Community: Robyn Bolden, Rebecca Brewin, Steve Keefe, Duncan Dey and Matthew Lambourne

Visitors: Ella Harrison (WMA Water), Katrina Smith (WMA Water)

Cr Lyon (Chair) opened the meeting at 2:09 pm and acknowledged that the meeting was being held on Bundjalung Country.

Apologies:

Phil Holloway (Director Infrastructure Services)

Andrew Page (Cape Byron Marine Park)

Cr Richardson

Toong Chin (Environment and Heritage)

Cr J Hackett

Susan Skyvington

Declarations of Interest – Pecuniary and Non-Pecuniary

There were no declarations of interest.

Adoption of Minutes from Previous Meetings

Committee Recommendation:

That the minutes of the Byron Shire Floodplain Risk Management Committee Meeting held on 24 September 2019 be confirmed.

(Dey/Lyon)

The recommendation was put to the vote and declared carried.

Note: The minutes of the meeting held on 24 September 2019 were noted, and the Committee Recommendations adopted by Council, at the Ordinary Meeting held on 24 October 2019.

Business Arising from Previous Minutes

There was no business arising from previous minutes.

Staff Reports - Infrastructure Services

Report No. 4.1 North Byron Floodplain Risk Management Study Draft Document

File No: I2019/1832

Committee Recommendation:

1. That Council support the public exhibition of the Draft North Byron Floodplain Risk Management Study Attachment 1 & 2 - (E2019/83311 & E2019/83313) from 20 January to 28 February 2020.

2. That Council delegate staff the authority to make minor amendments to the Draft North Byron Floodplain Risk Management Study documents, in consultation with support from the Floodplain Management Committee, prior to it going on public exhibition in January 2020.

(Hunter/Lyon)

The recommendation was put to the vote and declared carried.

There being no further business the meeting concluded at 4:00pm.

BYRON SHIRE COUNCIL

Staff Reports - Infrastructure Services 4.2

Report No. 4.2 Draft North Byron Floodplain Risk Management Study and Plan

Directorate: Infrastructure Services

Report Author: James Flockton, Drain and Flood Engineer

File No: I2020/418

Summary:

As per Council resolution the Draft North Byron Floodplain Risk Management Study has been to public exhibition for 28 days. 75 Submissions and 158 comments were received at the close of this process.

All comments have been addressed and The Draft North Byron Floodplain Risk Management Plan is now ready for committee review and public exhibition.

RECOMMENDATION:

Committee Recommendation:

1. That Council support the public exhibition of both the Draft North Byron Floodplain Risk Management Study and Plan documents from 27 April to 25 May 2020.

2. That the community should be commended for the interest and time they have taken to review and comment on the first exhibition stage of this project.

Attachments:

1 North Byron FRMS&P - FRMS Consultation Comments Report, E2020/19721 , page 13 ⇩

2 North Byron FRMS&P - Draft Floodplain Management Plan, E2020/19724 , page 49⇩

REPORT

At Council meeting on 12 December 2019 the following was resolved:-

That Council adopt the following Committee Recommendation(s):

Report No. 4.1 North Byron Floodplain Risk Management Study Draft Document

File No: I2019/1832

Committee Recommendation:

1. That Council support the public exhibition of the Draft North Byron Floodplain Risk Management Study Attachment 1 and 2 (E2019/83311 and E2019/83313) from 20 January to 21 February 2020.

(Lyon/Spooner)

As per this Council resolution the Draft North Byron Floodplain Risk Management Study was updated and has been to public exhibition for 28 days.

75 Submissions and 158 comments were received at the close of this process. It is noted this was an overwhelming amount of comments; previous flood reports have not received been close to this level of interest. This kind of interest helps the final document become a more accepted and much better plan that it would be without these comments and the community should be commended for their interest in this project.

Consultant WMA Water have now reviewed and responded to all the comments.

The complete submission report is provided at attachment 1 (E2020/19721).

Where possible the Draft North Byron Floodplain Risk Management Study has been amended appropriately. If this was not possible the reasons for no amendment have been given in the submissions report.

Following completion of amendments noted above The Draft North Byron Floodplain Risk Management Study and Plan is now ready for committee review and public exhibition.

In consultation with staff, WMA Water have prepared the Draft Floodplain Management Plan in accordance with assessment results, public consultation results and various discussions at previous committee meeting. This should result in a Draft Floodplain Management Plan that can be largely supported by the committee.

The Draft North Byron Floodplain Risk Management Plan is provided at attachment 2 (E2020/19724). It is proposed that that both the updated draft Study and Plan documents be provided in order to show the community how the study has been changed following public exhibition and to provide context to those reading the Floodplain Management Plan.

The updated Study document is not currently complete, however, it is planned to be complete when the committee meeting minutes are reported to Council for approval to exhibit both to the community. All amendments will be made in accordance with the report provided at attachment 1.

Key issues

This project is now on a critical path in order to allow the current Council to consider the final adoption of the Draft North Byron Floodplain Risk Management Study and Plan in their current term. The following milestones remain.

Draft Plan to Council for Exhibition approval

23/04/2020

Plan Exhibition for 4 weeks (All of May)

25/05/2020

Council report for Final Draft Plan to Council for adoption– Report to manager deadline

01/06/2020

Grant Milestone - Flood Risk Management Study & Plan Adopted

14/06/2020

Final Report to DPIE

14/06/2020

Final Draft Plan to Council for adoption

25/06/2020

Next steps

Upon completion of the public exhibition period the Draft North Byron Floodplain Risk Management Study and Plan will be amended as required and presented to Council for adoption as per the above milestones.

The committee may request the above timeline be changed to allow the committee to review the exhibition comments and report amendments prior to the final Draft North Byron Floodplain Risk Management Study and Plan being presented to Council. However, it is noted that this will extend the project period into a period when the Council enters caretaker mode, therefore, the plan will not be able to be adopted until after a new Council is elected.

All committee members will have the ability to comment on the final documents via the Council meeting business paper. Should an issue arise that cannot be resolved without committee support staff will have no option but delay the project and hold a meeting of the committee.

Legal/Statutory/Policy Considerations

NSW Councils are expected to prepare Floodplain Risk Management Studies and Plans for flood prone catchments within their local government areas. These documents must be prepared in accordance with State Government Policy.

The NSW Floodplain Development Manual 2005 is the current policy used by State Government for the preparation of such documents.

This project is following the methods prescribed in the NSW Floodplain Development Manual for completing Floodplain Risk Management Studies and Plans.

Financial Considerations

There are not financial issues with this stage of the project.

Consultation and Engagement

As per public exhibition process.

BYRON SHIRE COUNCIL

Staff Reports - Infrastructure Services 4.2 - Attachment 1

PDF Creator

BYRON SHIRE COUNCIL

Staff Reports - Infrastructure Services 4.3

Report No. 4.3 Discussion of item requested by committee member Duncan Dey reagrding filling in no-fill zone of Marshalls Creek floodplain

Directorate: Infrastructure Services

Report Author: Dominika Tomanek, Executive Assistant Infrastructure Services

File No: I2020/427

Summary:

This report has presented topic for discussion as requested by committee member Duncan Dey.

RECOMMENDATION:

That Council note the report.

REPORT

It was requested by committee member Duncan Dey to table the following item at the next Byron Shire Floodplain Committee meeting.

1. Duncan Dey’s enquiry and Director’s response to date on filling in no-fill zone of Marshalls Creek floodplain.

On 5 March 2020 the committee member Duncan Dey asked the below question:

Attached are photos of notices on the site and of a block-wall built for the purpose of taking fill at South Golden Beach, within a no-fill zone declared under the Marshalls Creek Floodplain Management Plan.

Could you and the Chair of the Floodplain Committee (Cr Lyon, I think) please put this matter on the Agenda for our meeting scheduled for 24 March? Please include the following, my view and a question on the matter.

My view is that Council and the state have invested deeply and behaved cordially to come up with Plans (like the one being developed right now) for sharing the joys and burdens of occupying floodplains. What is happening at 1 Kallaroo Circuit seems to break all those rules. If this is accepted, why would anyone conform to a Floodplain Management Plan.

My question is how did this happen?

Council has been notified by other shocked residents of the area.

People known to be involved include:

- Mark Thomas of Coastline Certification;

- Council's Greg Smith and Dylan Johnstone.

Director responded to the question on 10 March 2020 as below;

The development you have requested information about was approved by Council but the construction certificate and construction is being managed by a private certifier. Conditions of consent required the floor levels to be raised to the currently adopted 2050 Flood Planning Level to comply with Council’s minimum floor level requirements. This is higher than the surrounding developments due to changes in flood planning heights, following revised flood studies and plans that considered more recent flood events and Council’s climate change parameters, since adoption of the 1997 Marshalls Creek Floodplain Management Plan.

The land was originally filled to above the 1 in 100 year flood level in the early 2000s (WAE plans are dated 30/1/2002) as part of the "Fern Beach Estate" subdivision, which was approved by the Land and Environment Court in 1997.

As identified in the work as executed (WAE) plans (extract below), the level of the land is in the order of 3.5m AHD and the 100 year flood level was estimated to be 3.2m AHD in the Tweed – Byron Coastal Creeks Flood Study (March 2010).

The Tweed Byron Coastal Creeks Flood Study, Byron Shire Council Climate Change Assessment (March 2010) indicates a 2050 flood level in the vicinity of the site of 3.3m AHD (figure 3-2) and does not identify the site as being in a flood hazard area (figure 3-4). It is also noted that the land is not identified as being in a flood hazard area in figure 106 of the recently exhibited draft North Byron Flood Plain Management Study.

Accordingly, the development is consistent with the flood planning matrix in Chapter C2 of Council’s DCP 2014, which does not prohibit filling in the “No Hazard” flood hazard areas.

Further the above court ruling effectively removed the no fill area over this area of land. Therefore Council does not have an avenue to successfully stop filling in this area.

It is also noted that The North Byron Floodplain Management Plan, which is coming soon, will update all the no fill areas compared to the 1997 Flood Plan and this area is unlikely to be covered by a no fill zone.

We do not believe Council is able to prevent this filling from occurring, however, we are working with the certifier to reduce the fill where practical to ensure the finished development does not create any stormwater drainage issues for the neighbouring properties.

Council has also received correspondence from neighbour raising similar concerns and will respond accordingly following further discussions with the Certifier.

Extract of WAE Plans:

Extract of Figure 3-4 of Tweed Byron Coastal Creeks Flood Study, Byron Shire Council Climate Change Assessment (March 2010):

Extract of Figure 106 of the recently exhibited draft North Byron Flood Plain Management Study:

Legal/Statutory/Policy Considerations

The NSW Floodplain Development Manual 2005 is the current policy used by State Government for the preparation of such documents.

This project is following the methods prescribed in the NSW Floodplain Development Manual for completing Floodplain Risk Management Studies and Plans.

Financial Considerations

There are not financial issues with this stage of the project.

Consultation and Engagement

This issue was relates to an approved DA, therefore the Manager Sustainable Development, Development Engineering Supervisor and Team Leader Planning Services were consulted with in developing this response.

BYRON SHIRE COUNCIL

Staff Reports - Infrastructure Services 4.4

Report No. 4.4 Discussion of item requested by Cr Lyon

Directorate: Infrastructure Services

Report Author: Dominika Tomanek, Executive Assistant Infrastructure Services

File No: I2020/429

Summary:

This report has presented topic for discussion as requested by Cr Lyon.

RECOMMENDATION:

That Council note the report

REPORT

It was requested by the chairman of the committee Cr Lyon to table the following item at the next Byron Shire Floodplain Risk Management Committee meeting.

1. Discussion whether New Brighton is being catered for appropriately in these flood mitigation conversations as a concern has been expressed that it is too focused on Billinudgel.

2. Condition of the "Drainage Easement" between Rangal Road and Gloria Street, South Golden Beach/Ocean Shore.

In relation to the item 1, the management advice is as below:

New Brighton is a low lying area impacted by both flood and coastal hazards. It is staff opinion that the Floodplain Risk Management Study has considered this area to level feasible. Large scale redevelopment and filling of the area is the only possible solution to prevent the area flooding and this level of works is unrealistic.

The Floodplain Management Plan recommends the raising of access roads to improve access during a flood event and the drainage investigations recommended can investigate drainage improvements to reduce the impacts of smaller events and rainfall in the run up to a flood. These are considered the only realistic options available to this area.

In relation to the item 2, Cr Lyon received the enquiry from the Byron Shire resident as below:

The condition of the drainage easement between Rangal Road and Gloria Street, South Golden Beach, is of serious concern to me, it "should" drain into the Capricornia Channel if allowed and the water eventually should be released into the Yelgen and Marshalls Creeks. AT THE MOMENT IT IS BLOCKED

I have spent the summer clearing the vegetation and dumped green waste, predominantly palm fronds from the easement behind me - a lot of physical effort for a 74 year old woman. However, I am unable to clear the entire easement. A few other neighbours have also been diligent.

As one progresses west along the easement, conditions get worse and worse. THERE IS AN ENORMOUS AMOUNT OF ACCUMULATED VEGETATION, DUMPED GREEN GARDEN WASTE, ESPECIALLY PALM FRONDS AND GENERAL DEBRIS. At one stage there is a LARGE GOLDEN CANE PALM growing right in the middle of what should be the channel, a broken down fence and part of a recently constructed garden shed.

I am unable to walk along the easement and the water is unable to flow except when the drain is in full flood. Directly behind my property the flood waters are barely moving. As a result the waters are stagnating in large pools. These are now filled with a BROWNY GREEN, FUZZY, SLIMY SLUDGE that stinks. The local sewer runs parallel with the easement and the condition of the the waters, indicates that it may have overflowed during the recent rains. This situation has created a DANGEROUS ENVIRONMENTAL HAZARD for children, animals and the community at large.

I ask that council complies with it's commitment to maintain the drainage system, as per it's responsibility for managing flood affected areas and FREE THIS EASEMENT AS A MATTER OF URGENCY BEFORE PEOPLE START TO GET SICK.

Utilities Department Team Leader (Stormwater and Sewer Maintenance) walked the easement and met with residents on the 24^th February 2020.

Works will require an excavator, bobcat and a couple of trucks and take approximately 5 days to complete.

Tree roots will need to be removed or ground down to reduce vegetation build up and some stands of clumping palms and two palm trees will need to be removed along with garden waste.

The drain requires reshaping to regain some fall towards the flood pump.

Council will do a letter drop to the residents explaining what will be done and also a request for people to stop putting garden waste in the easement and use the green bins provided.

Works are currently planned to be carried out from the 30th March to the 3rd April 2020.

Legal/Statutory/Policy Considerations

The NSW Floodplain Development Manual 2005 is the current policy used by State Government for the preparation of such documents.

This project is following the methods prescribed in the NSW Floodplain Development Manual for completing Floodplain Risk Management Studies and Plans.

Provision of stormwater infrastructure is a legitimate function of local government under the Local Government Act 1993. To the extent that the provision of stormwater infrastructure protects public roads, other infrastructure, Council land, Crown land, Private land and the community. Council is also responsible for drainage under the Roads Act 1993.

In all cases, Council must meet its obligation to provide a satisfactory and safe level of drainage for the Shire’s residents and a drainage network which is maintained in a condition which is not likely to endanger the Shire’s residents during or after a rainfall event.

Financial Considerations

There are not financial issues.

Consultation and Engagement

Only as per the public exhibition process for the study document.

Venue	Conference Room, Station Street, Mullumbimby
Date	Tuesday, 24 March 2020
Time	2.00pm

Venue	Conference Room, Station Street, Mullumbimby
Date	Tuesday, 26 November 2019
Time	2pm