NOTICE OF MEETING

 

 

 

 

ORDINARY MEETING

 

 

An Ordinary Meeting of Byron Shire Council will be held as follows:

 

Venue

Council Chambers, Station Street, Mullumbimby

Date

Thursday, 9 February 2012

Time

10.30am

 

 

This meeting will be open to the public and the press.

 

Public Access relating to items on this Agenda can be made between 9.00am and 10.30am 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.

 

Submissions and questions from the public - Anyone wishing to make a submission to Council on an item outside the Agenda or to ask a question of a general nature to Councillors or to the General Manager will be able to do so at the completion of the Public Access period (refer note above) time permitting and at the discretion of the Mayor.

 

 

 

 

 

Graeme Faulkner

General Manager                                                                                                                   #1194387

                                                                                                                                    Distributed 02/02/12
Amended 03/02/12 (Late Report 16.1)
Amended 07/02/12 (Late Report 17.1)


 

CONFLICT OF INTERESTS

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

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

Non-pecuniary – a private or personal interest that a Council official has that does not amount to a pecuniary interest as defined in the Local Government Act (eg. A friendship, membership of an association, society or trade union or involvement or interest in an activity and may include an interest of a financial nature).

Remoteness – a person does not have a pecuniary interest in a matter if the interest is so remote or insignificant that it could not reasonably be regarded as likely to influence any decision the person might make in relation to a matter or if the interest is of a kind specified in Section 448 of the Local Government Act.

Who has a Pecuniary Interest? - a person has a pecuniary interest in a matter if the pecuniary interest is the interest of the person, or another person with whom the person is associated (see below).

Relatives, Partners - a person is taken to have a pecuniary interest in a matter if:

§         The person’s spouse or de facto partner or a relative of the person has a pecuniary interest in the matter, or

§         The person, or a nominee, partners or employer of the person, is a member of a company or other body that has a pecuniary interest in the matter.

N.B. “Relative”, in relation to a person means any of the following:

(a)   the parent, grandparent, brother, sister, uncle, aunt, nephew, niece, lineal descends or adopted child of the person or of the person’s spouse;

(b)   the spouse or de facto partners of the person or of a person referred to in paragraph (a)

No Interest in the Matter - however, a person is not taken to have a pecuniary interest in a matter:

§         If the person is unaware of the relevant pecuniary interest of the spouse, de facto partner, relative or company or other body, or

§         Just because the person is a member of, or is employed by, the Council.

§         Just because the person is a member of, or a delegate of the Council to, a company or other body that has a pecuniary interest in the matter provided that the person has no beneficial interest in any shares of the company or body.

Disclosure and participation in meetings

§         A Councillor or a member of a Council Committee who has a pecuniary interest in any matter with which the Council is concerned and who is present at a meeting of the Council or Committee at which the matter is being considered must disclose the nature of the interest to the meeting as soon as practicable.

§         The Councillor or member must not be present at, or in sight of, the meeting of the Council or Committee:

(a)   at any time during which the matter is being considered or discussed by the Council or Committee, or

(b)   at any time during which the Council or Committee is voting on any question in relation to  the matter.

No Knowledge - a person does not breach this Clause if the person did not know and could not reasonably be expected to have known that the matter under consideration at the meeting was a matter in which he or she had a pecuniary interest.

Participation in Meetings Despite Pecuniary Interest (S 452 Act)

A Councillor is not prevented from taking part in the consideration or discussion of, or from voting on, any of the matters/questions detailed in Section 452 of the Local Government Act.

Non-pecuniary Interests - Must be disclosed in meetings.

There are a broad range of options available for managing conflicts & the option chosen will depend on an assessment of the circumstances of the matter, the nature of the interest and the significance of the issue being dealt with.  Non-pecuniary conflicts of interests must be dealt with in at least one of the following ways:

§         It may be appropriate that no action be taken where the potential for conflict is minimal.  However, Councillors should consider providing an explanation of why they consider a conflict does not exist.

§         Limit involvement if practical (eg. Participate in discussion but not in decision making or vice-versa).  Care needs to be taken when exercising this option.

§         Remove the source of the conflict (eg. Relinquishing or divesting the personal interest that creates the conflict)

§         Have no involvement by absenting yourself from and not taking part in any debate or voting on the issue as if the provisions in S451 of the Local Government Act apply (particularly if you have a significant non-pecuniary interest)

RECORDING OF VOTING ON PLANNING MATTERS

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

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

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

(b)   not including the making of an order under Division 2A of Part 6 of that Act.

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

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

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

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


BUSINESS OF ORDINARY MEETING

 

1.    APOLOGIES

 

2.    REQUESTS FOR LEAVE OF ABSENCE

 

3.    DECLARATIONS OF INTEREST – PECUNIARY AND NON-PECUNIARY

 

4.    TABLING OF PECUNIARY INTEREST RETURNS (s450A Local Government Act 1993)

 

5.        ADOPTION OF MINUTES FROM PREVIOUS MEETINGS

 

5.1.       Extraordinary Meeting held on 8 December 2011

5.2.       Ordinary Meeting held on 15 December 2011

 

6.    RESERVATION OF ITEMS FOR DEBATE AND ORDER OF BUSINESS

 

7.    MAYORAL MINUTE

8.        NOTICES OF MOTION

 

8.1.       Exercise Equipment............................................................................................................. 4

8.2.       College of Marine Studies.................................................................................................... 6

8.3.       Mullumbimby Civic Centre Precinct Safety Stakeholder Meeting..................................... 8

8.4.       CBD & Town Centre Design and Development Conference............................................ 10

8.5.       Review of Rates for bed and breakfast establishments.................................................... 12

8.6.       Review of charges for community markets and holiday park cabins............................... 14

 

9.    PETITIONS

 

10.  SUBMISSIONS AND GRANTS

 

11.  DELEGATES’ REPORTS

 

12.    REPORTS BY DIVISION

 

General Manager

12.1.   Management Plan Review 2011-2014 for the period October to December 2011.......... 17

12.2.   Loss of Crown Caravan Parks administered by Byron Shire Holiday Parks Reserve Trust in 2006       19

12.3.   Constitutional Recognition of Local Government.............................................................. 22

 

Community Infrastructure

12.4.   Report of Belongil Creek Floodplain Risk Management Committee meeting held on 13 December 2011                                                                                                                                            24

12.5.   Report of North Byron Coastal Creeks Floodplain Risk Management Committee meeting held on 13 December 2011................................................................................................................. 29

12.6.   Public submissions on Draft Policy for Wet Weather Sporting Ground Closures............. 32

12.7.   Naming of fields at Bangalow and Byron Regional Sport and Cultural Complex............. 35

12.8.   Status report on Fleet Management Action Plan............................................................... 37

Corporate Management

12.9.        Local Government Elections September 2012 Key Dates – Constitutional Referendum or Council Poll......................................................................................................................................... 40

12.10.    Draft Guidelines - Section 355 Management Committees............................................. 44

12.11.    Heritage House Bangalow Section 355 Committee – Amended fees and charges....... 46

12.12.    Water, Waste and Sewer Advisory Committee membership......................................... 50

12.13.    PLANNING - Public submission on the exhibition of the Draft Air Space Policy........... 52

12.14.    Request for reduction in fees - Byron Artisan Market.................................................... 57

12.15.    2011-2012 Financial Assistance Grant........................................................................... 61

12.16.    Council holiday parks financial performance 2010/2011................................................ 64

12.17.    Investments –November and December 2011............................................................... 67

12.18.    Budget Review - 1 October to 31 December 2011........................................................ 74

12.19.    Council Resolutions Review for the period October to December 2011........................ 85

12.20.    Removal of rotunda in Mullumbimby Reserve............................................................... 87

 

Environment and Planning

12.21.    Byron Shire Greenhouse Emission and Energy Consumption Status Report - 2010/11 Period            91

12.22.    Evaluation of trial beach scraping episode, New Brighton Beach.................................. 95

12.23.    PLANNING - Report on expenditure of S94 funds Broken Head Hall at 356 Broken Head Road, Broken Head.............................................................................................................................. 109

12.24.    PLANNING - 10.2011.377.1 - Subdivision to create 11 lots and balance lot............... 112

12.25.    PLANNING - 10.2011.319.1 - Subdivision to create four residential lots and one residual lot   140

12.26.    PLANNING - 10.2011.359.1 - Consent conditions 1 Mullumbimby Road, Myocum... 172

12.27.    PLANNING - 10.2011.191.1 s82A Review - Use of part of the tourist premises for up to 14 functions annually - Limited to a maximum of 70 guests per function - 6/137 Beach Road, Broken Head          174

12.28.    PLANNING - DA 10.2010.576.1 Beaches of Byron Caravan Park at 5-37 Broken Head Road, Byron Bay................................................................................................................................ 182

 

Organisational Support

12.29.    PLANNING - Legal Status Report as at 23 January 2012........................................... 222

12.30.    PLANNING - BSC ats Bowen LEC 41265/2012.......................................................... 233

 

Society and Culture

12.31.    Request to join the steering committee for a proposed Byron Shire Local Tourism Organisation         238

12.32.    Youth Council appointments 2012................................................................................ 241

12.33.    Revised status report on the implementation of the Disability Access and Inclusion Plan 2008-2013   244

 

13.    COMMITTEE REPORTS

 

Society and Culture

13.1.        Report of the Tourism Advisory Committee Meeting held on 8 December 2011........ 247

 

14.    COUNCILLORS’ QUESTIONS WITH NOTICE

 

15.    CONFIDENTIAL REPORTS

 

Community Infrastructure

15.1.        CONFIDENTIAL Tender Assessment – Management Contract Multi Purpose Facility BRSCC          250

 

Environment and Planning

15.2.        CONFIDENTIAL Old Byron Bay Beach Resort site, Bayshore Drive, Byron Bay...... 254

 

Water and Recycling

15.3.   CONFIDENTIAL Land Matters - Myocum Landfill......................................................... 258

 

16.  LATE REPORT

 

Corporate Management

16.1.    Request for lifting of Caveat - Byron Bay Community Association - 69 Jonson Street, Byron Bay Lot 1 DP524709...................................................................................................................... 260

 

17.  CONFIDENTIAL LATE REPORT

 

Community Infrastructure

 

17.1.... CONFIDENTIAL Interim Management of BRSCC Multi Purpose Facility.................. 263

 

 

 

Councillors are encouraged to ask questions regarding any item on the business paper to the appropriate 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.

 

 

 

 

 

Version 3 of 3

 

 

NOTICES OF MOTION

 

Notice of Motion No. 8.1.

Exercise Equipment

ENG540000 #1177327

 

I move that Council receive a report on the installation of exercise equipment at the following places.  The equipment to be the same as that installed in Waterlily Park at Ocean Shores.

 

1.    Mullumbimby Civic Centre precinct

2.    Brunswick Heads Terrace Park

3.    Bangalow (a site to be determined)

4.    Byron Bay in Railway Park

 

 

Signed:   Cr Diane Woods

 

Councillor’s Background Notes:

 

The Waterlily Park exercise equipment installed recently has proved to be a great success, providing a great area for the community to gather with their children to socialise and also gain health benefits by using the installed equipment.

 

It would be of great advantage to have the same equipment installed in the neighbourhood precinct of the Mullumbimby Civic Centre, as it would provide an area for the community who gather there, a place to increase their physical wellbeing at no cost.

 

The area suggested for Brunswick Heads is at the southern end of the Terrace Park, near the swings and under the lovely fig tree.

 

The installation of this equipment if done the same as Waterlily Park, contains the cost to one area and is less expensive to maintain than if it was spread out along the riverbank as was first suggested for Brunswick Heads.

 

For Bangalow, consultation with the community for a suitable site would be best.

 

For Byron Bay, the Railway Park precinct would be improved with such an area where adults and children could gather.

 

Recommended priority relative to other Management Plan tasks:

High.

 

Definition of the project/task:

A report come back to Council early in the New Year.

 

Source of Funds (if applicable):

Open Space supported by grant applications.

 

Comments Executive Manager Community Infrastructure:

 

Clarification of project/task:

The exercise equipment installed at Waterlily Park has proved popular but has been subjected to vandalism, consequently further installations should be in positions where a high level of informal surveillance is possible. Guidelines for crime prevention through environmental design (CPTED) should be employed when designing the installation.

Executive Manager responsible for task implementation:

Community Infrastructure

 

Relationship to, priority of, and impact on other projects/tasks:

Consideration should be given as to the likelihood of this equipment being exploited by the many personal fitness trainers and commercial boot camps operating in Byron Bay and Brunswick Heads. This may have implications within Policy 5.52 Commercial Activities on Coastal and Riparian Crown Reserves.

 

Financial and Resource Implications:

The array of equipment and associated soft-fall installed at Waterlily Park cost $50,000. It would need to be ensured that these amounts were available from Section 94 or an alternative source for each proposed location.

 

Legal and Policy Implications:

Council resolved (11-486) not to undertake maintenance works on Crown land that is not under Council control or management this may preclude the installation at the terrace Brunswick Heads which is under Crown management unless it is on a full cost recovery basis.

 

 

Notice of Motion No. 8.2.

College of Marine Studies

COR405527 #1189931

 

I move that Council reaffirm its support to the Marine College proposal and write a letter to the Minister for Local Government, Don Page, and the Minister for Primary Industries and Small Business, Katrina Hodgkinson, stating its support.

 

 

Signed:   Cr Diane Woods

 

Councillor’s Background Notes:

 

The Marine College proposal has been developed over 8 years and a feasibility study showed that it would be a great asset to the Byron Shire.

 

The proponents have been working tirelessly to bring together the Education Department, Department of Infrastructure, Indigenous groups and many other interested parties, to assist with the development of the proposed college.

 

Recommended priority relative to other Management Plan tasks:

NA

 

Definition of the project/task:

NA

 

Source of Funds (if applicable):

NA

 

Comments Executive Manager Corporate Management:

 

Clarification of project/task:

The Notice of Motion is seeking Council to reaffirm its support to the Marine College proposal and write to the Minister for Local Government, Don Page, and the Minister for Primary Industries and Small Business, Katrina Hodgkinson, stating this support.

 

Representatives of the Marine College proposal, at a meeting held on 24 January 2012, indicated that they would be meeting with the Minister for Primary Industries on 9 February 2012 to discuss the proposal. The representatives at this meeting sought the support of Council and asked that Council write to the Minister and the Minister of Local Government reaffirming Council’s support for their proposal.

 

On the basis that Council was not meeting until 9 February 2012, and as such is unable to consider this most recent request until that date, management have written to both the Minister for Local Government, Don Page, and the Minister for Primary Industries and Small Business, Katrina Hodgkinson, to provide copies of past Council resolutions indicating the Council’s support of the Brunswick Heads Boat Harbour/Marine College proposal.

 

A copy of the correspondence to Minister for Local Government, Don Page, and the Minister for Primary Industries and Small Business, Katrina Hodgkinson, has been included at Annexure 42(a) and 42(b) to this Notice of Motion.

 

Executive Manager responsible for task implementation:

Executive Manager Corporate Management

 

Relationship to, priority of, and impact on other projects/tasks:

This task will not impact on other projects or tasks.

 

Financial and Resource Implications:

The task will be undertaken within existing allocated resources and will not have any additional resource impacts.

 

Legal and Policy Implications:

The Notice of Motion will reaffirm the position of support previously adopted by Council.

 

 

Attachments:

 

·       Correspondence to Minister for Primary Industries and Small Business
#1189963 [7 pages]......................................................................................................... Annexure 42(a)

·       Correspondence to Minister for Local Government #1189939 [7 pages]............................. Annexure 42(b)

 

 

 

 

Notice of Motion No. 8.3.

Mullumbimby Civic Centre Precinct Safety Stakeholder Meeting

COR405527 #1191153

 

I move:

 

1.       That a meeting be convened with key precinct stakeholders to identify main issues around the safety, security and maintenance of the Mullumbimby Civic Centre Precinct.

 

2.       That the meeting is to be convened before April.

 

3.       That recommendations arising from the meeting be brought to Council.

 

 

Signed: Cr Simon Richardson

 

Councillor’s Background Notes:

Recently, it has become apparent that many safety and security issues have begun to hamper efforts in maintaining the facilities around the Mullumbimby Civic Hall. Homeless members of the community have felt safe to sleep and keep their possessions in and around the Hall for many years. However, of late, property damage and unsanitary behaviour have occurred.  This has the potential for current hirers and users of the space to seek to move elsewhere, depriving the area of popular events and classes and weakening important threads in the fabric of the Mullumbimby and surrounding community. As the rotunda in the open space area within the precinct has also often been the subject of resident’s complaints and property damage, a failure to address these issues has the capacity to escalate tensions within the community, perhaps leading to further estrangement felt by our homeless. A meeting convened by Council and attended by members and organisations surrounding the precinct would be a first step in an effort to minimise risks to all precinct users and the general public.

 

Recommended priority relative to other Management Plan tasks:

This meeting and the recommendations arising may assist to inform the Community Safety Plan and the review of existing and development of new policies and procedures for Community Infrastructure 2011/12 (15.2 and 16.1 of Management Plan).

 

Definition of the project/task:

The convening of a meeting to address safety and security issues within the Mullumbimby Civic Centre Precinct.

 

Source of Funds (if applicable):

As for current meetings only staff time will be impacted.

 

Comments Executive Manager Corporate Management:

 

Clarification of project/task:

In response to complaints received over the last twelve months or so by Council and Mullumbimby Police, staff have prepared a report to this meeting titled “Removal of Rotunda in Mullumbimby Reserve. The complaints received from the community relate to people occupying and living in the rotunda in Mullumbimby Reserve. 

 

The report provides a background on the complaints received and the investigations undertaken.

 

In addition to complaints received by Council and Mullumbimby Police in relation to the occupation of the Rotunda or other structures within the precinct, complaints are received in relation to behaviour impacting on the operation of the Mullumbimby Civic Hall.

 

The most recent complaint was received on 31 January 2012, and related to an instance where someone threw a beer bottle through the door trying to hit the cleaner while they were mopping the floor.  The bottle smashed and glass went all over the floor just missing the cleaner. The cleaner was unable to identify the person involved as they ran off. 

 

There is a concern that this incident or similar incidents may impact on hiring of the hall and result in a loss of revenue.

 

The Notice of Motion requires the convening of a meeting with key precinct stakeholders to identify main issues around the safety, security and maintenance of the Mullumbimby Civic Centre Precinct. The meeting is to be convened prior to April 2012 with the recommendations from the meeting to be reported to Council.

 

The meeting should ideally include interested Councillors, members of the Mullumbimby Civic Hall Board of Management, representatives of Corporate Management and Society and Culture, precinct stakeholder representatives from the RSL and the Mullumbimby & District Neighbourhood Centre and a note taker.

 

Executive Managers responsible for task implementation:

Executive Manager Society and Culture and Executive Manager Corporate Management

 

Relationship to, priority of, and impact on other projects/tasks

It is not envisaged that convening of a meeting and preparation of a report to Council will have an impact on other priorities or projects.

 

Financial and Resource Implications:

Staff resources in the organising and holding of a meeting.

 

Once the meeting has identified all the security and safety concerns, it will be necessary for these concerns to be reported to Council.

 

Community complaints to Council have been made in relation to the rotunda located in the Mullumbimby Civic Precinct, near the Mullumbimby Civic Hall. The report provided to Council at this meeting discusses this specific topic, and offers some recommendations for future action. A budget allocation of $2,000 has been identified in this report in respect of the staff recommendation.

 

Legal and Policy Implications:

Council has obligations under the Workplace Health and Safety Act to ensure that minimum standards of health and safety are maintained. The meeting will allow for any issues to be identified. The meeting outcomes will also inform any review of existing and the development of new policies and procedures.

 

 

 

Notice of Motion No. 8.4.

CBD & Town Centre Design and Development Conference

COR405000 #1187159

 

I move that Council appoint a Councillor or Councillors to attend the CBD & Town Centre Design and Development Conference in Sydney from 23-24 May 2011.

 

 

Signed:   Cr Jan Barham

 

Councillor’s Background Notes:

 

This conference will provide comprehensive analysis and advice on how to optimise the infrastructure and design of key community hubs.

 

The conference will provide valuable information on how we on how Council can enhance our town centres for the benefit of the whole community.

 

Source: www.cbdconference.com.au

 

Recommended priority relative to other Management Plan tasks:

High.

 

Definition of the project/task:

N/A

 

Source of Funds (if applicable):

Councillor Expenses – Professional Development – Conferences (2145.4)

 

Approximate cost:

 

-            Registration        $900

-            Travel                 $400

-            Accommodation $250

 

Total:                     $1,550

 

Comments Executive Manager Corporate Management:

 

Clarification of project/task:

This Notice of Motion seeks funding for attendance at the CBD & Town Centre Design and Development Conference.  Councillor attendance at the conference is supported.

 

Executive Manager responsible for task implementation:

Corporate Management

 

Relationship to, priority of, and impact on other projects/tasks:

There will be no impact on other projects.

 

Financial and Resource Implications:

The approximate funds currently available in the Councillors – Conferences Budget is $8053.17.

 

Legal and Policy Implications:

In accordance with Clause 7.3.1 of Council’s Policy 1.1 Mayor and Councillors Payment of Expenses and Provision of Facilities “A resolution of Council is required to authorise attendance of Councillors at any other discretionary conference, seminar or training.”

 

Clause 7.2.1 details the Conferences and Seminars that may be attended by Councillors.

 

Clause 7.2.1 reads as follows:

 

“7.2.1. The conferences, seminars, workshops, courses and similar to which this

policy applies shall generally be confined to:

 

a)      Local Government Association Annual (LGA and Australian local Government Association (ALGA) Conferences;

 

b)      Special “one-off” conferences called or sponsored by or for LGA and/or ALGA on important issues;

 

c)      Annual conferences and congresses of the major professions in local government;

 

d)      Australian Sister Cities Conferences;

 

e)      Regional Organisation of Councils Conferences

 

f)       Conferences which advance the professional development of elected members in their role as Councillors.”

 

g)      Any meetings or conferences of organisations or bodies on which a Councillor of the Council may be elected, or appointed to be, a delegate or member of the Council or the LGA.

 

h)      Seminars which further the training and development efforts of the Council and within the budget framework.

 

 

 

Notice of Motion No. 8.5.

Review of Rates for bed and breakfast establishments

COR405527 #1190553

 

I move that Council consider the application of commercial rating charges for bed and breakfast establishments and take appropriate steps to ensure compliance with legislation and or review other means of allocating a sliding scale rating for bed and breakfast establishments.

 

 

Signed:   Cr Jan Barham

 

Councillor’s Background Notes:

 

The approval of bed and breakfast establishments (B&Bs) has included the payment of S94 Developer Contribution fees and the application of commercial rate charges.  The tourism industry is a major economic contributor to Byron Shire and these establishments play an important part in the managed tourism accommodation facilities offered in the shire.  For some time there have been concerns raised about the payment of the associated costs with B&Bs especially since the proliferation of holiday letting which has in effect created competition and an unlevel playing field in terms of the costs associated. 

 

A recent response to a query by operators about the ability to reduce the rating charges for B&Bs from staff has raised concerns about the appropriateness of the charges on this type of development, see attached email.

 

I referred the response from staff to the operators and have now received a representations requesting that the issue of commercial rating be reviewed.

 

There are issues for consideration in terms of the application of the commercial and the fact that most of the B&B’s are in residential areas and do not fall into a zoned commercial area or a defined area of business as they are dispersed.

 

It’s important for council to consider the matter and determine if the charges are appropriate and if there is the potential to amend the rating charges applied to B&Bs to ensure compliance with the legislation and fairness to a sector of the tourism industry.

 

Attachments:

 

·       Email from Mark Arnold dated 5 September 2011 #1190563 [3 pages]................................. Annexure 40

 

Recommended priority relative to other Management Plan tasks:

The application of appropriate rates.

 

Definition of the project/task:

Clarification of the legal issues of rating.

 

Source of Funds (if applicable):

NA

 

Comments Executive Manager Corporate Management:

 

Clarification of project/task:

Review of rating structure in particular rates applied to B&Bs to ensure compliance with legislation (Local Government Act 1993) and fairness in the imposition of rates.

 

 

Executive Manager responsible for task implementation:

Executive Manager Corporate Management

 

Relationship to, priority of, and impact on other projects/tasks:

As the rating structure for 2011/2012 has been determined by Council through resolution 11-511 and as explained in Annexure 40 there is no possibility to review the rating structure for the 2011/2012 financial year.  Council could undertake a review of the rating structure but this could not apply until the 2012/2013 financial year.  If it is Council’s desire to do this it would need to devise rating options that are legislatively compliant and consult on these as part of the upcoming community consultation on the Community Strategic Plan, Delivery Plan and Operational Plan.

 

Financial and Resource Implications:

Any amendment to the rating structure would not create any financial implications to Council as the outcome of this Notice of Motion. The impact of any changes would be to redistribute amongst ratepayers the proportion of rates payable.  Council would still collect the same revenue it is allowed in compliance with rate pegging limits set but if there is a reduction in rates for a category of ratepayer then this would cause a corresponding increase amongst another category or categories of ratepayers depending upon the rating structure adopted by Council.

 

Legal and Policy Implications:

In determining an appropriate rating structure, Council must consider the requirements of Chapter 15, Part 3 of the Local Government Act 1993 being sections 514 to 531.  Given the current legislative restrictions, it is not possible to create a specific rating category for B&Bs.  As outlined in Annexure 40, categorisation for rating purposes is determined on the dominant use of the property in question.  Council is constrained with the rating categories defined in Section 514 of the Local Government Act 1993.  Whilst Section 529 of the Local Government Act 1993 provides the ability to subcategorise within the generic rating categorisations and establish appropriate rates accordingly, sub categorisation is based on the notion of a centre of activity.  An example of sub categorisation would apply in the business category for say a business centre or industrial estate where a geographic boundary can be determined.  This does not provide the ability to create a subcategory for B&Bs that are not concentrated in a specific geographic area but are scattered throughout various locations in the Shire.

 

Council has a process in place that provides individual ratepayers the ability to seek a review of their respective rating category.  On the current rating structure for B&Bs they would either be categorised as business or residential depending upon the dominant use of the land the B&B is situated.  In considering whether a B&B should be rated residential or business, Council would consider as part of an application process by the owner of the B&B criteria such as:

 

 

Upon assessment of an application a B&B would be rated residential if the dominant use of the property is residential and it would be rated business if the dominant use of the premises was for B&B activities.

 

A ratepayer then has the right to appeal Council’s decision as to the categorisation of their property to Council in the first instance and then ultimately to the Land and Environment Court if they still believe the categorisation determined by Council is incorrect.

 

To create a specific rating category for B&Bs as indicated in this Notice of Motion would require an amendment to the Local Government Act 1993.

 

 

 

Notice of Motion No. 8.6.

Review of charges for community markets and holiday park cabins

COR405527 #1190551

 

I move that Council review the charges identified in the Rates and Charges 2011/2012 in relation to:

 

a)      temporary community markets

b)      caravan park cabin charges

 

and consider reducing the temporary community fee and allowing for a seasonal fee and consider the reduction of the cabin charges.

 

Signed:   Cr Jan Barham

 

Councillor’s Background Notes:

 

The adoption of 2011/2012 Fees and Charges resulted in changes to the fees applied for temporary community markets and cabin fees.  It appears that these charges may have been applied without clarity about the outcomes.  The community market fees have been levied at a rate that is above commercial rates, see attachments and doesn’t allow for seasonal markets such as the Artisan Market in Byron Bay as there is no variation for the per day rate for extended periods as is defined for Temporary Commercial Activities.  This results in the situation where commercial activities operating for more than 21 days is $145 per day, while the fee a temporary market licence is fixed at $320 per day with no sliding scale for the per day for extended days of trading.  There has also been an increase in the daily Temporary Market Licence fee – 2010 - $275, 2011 - $320.

 

The Holiday Park cabin fee increases for peak periods were approximately 32% for First Sun and 25% for Suffolk Park, see attachments.  Unfortunately neither of these peak pricing areas identified a comparison with the previous year as had been previously done, see attachments for 2010/11 e.g. First Sun – Ocean View cabin 2011/12 - $400 per night, 2010/11 - $290.

 

Council has received correspondence about the Artisan market fees and I have personally had the cabin fees raised with me by a Member of Parliament who is a long term visitor with her family to the First Sun Holiday Park.

 

It is important the levying of fees and charges is fair, open and transparent and I propose a review of the fees and charges in light of what appears to be excessive increases.

 

Attachments:

 

·       Byron Bay Community Association letter to BSC re market charges- dated 3 October 2011
and BSC 2010 and 2011 fees described #1149813 [4 pages]............................................. Annexure 39(a)

·       BSC response to BBCA dated 31 October 2011 #1158501 [2 pages]................................. Annexure 39(b)

·       BBCC email response to BSC dated 15 December 2011 #1190567 [1 page]....................... Annexure 39(c)

·       Temporary Market Licence 2010/11 - Fees and Charges page 23 #979201 [1 page]............. Annexure 39(d)

·       Temporary Market Licence 2011/12 - Fees and Charges page 25 #1108562 [1 page]........... Annexure 39(e)

·       First Sun Holiday Park Pricing 2010/11 - Fees and Charges page 25 #979201 [1 page]........ Annexure 39(f)

·       First Sun Holiday Park Pricing 2011/12 - Fees and Charges page 27 #1108562 [1 page]...... Annexure 39(g)

·       Suffolk Park Holiday Park Pricing 2010/11 - Fees and Charges page 26 #979201 [1 page].. Annexure 39(h)

·       Suffolk Park Holiday Park Pricing 2011/12 - Fees and Charges page 26 #1108562 [1 page].. Annexure 39(i)

 

Recommended priority relative to other Management Plan tasks:

Fees and Charges.

Definition of the project/task:

Review of charges.

 

Source of Funds (if applicable):

NA

 

Comments Executive Manager Corporate Management:

 

Clarification of project/task:

Review of fees and charges associated with market licences and holiday park fees and charges.

 

Executive Manager responsible for task implementation:

Executive Manager Corporate Management

 

Relationship to, priority of, and impact on other projects/tasks:

Any amendments to fees and charges subject of this Notice of Motion could be dealt within existing priorities if Council chose to determine alternative fees by resolution.

 

Financial and Resource Implications:

Prior to Council’s adoption of a temporary market licence fee, there where no fees or charges levied for the use of Council owned land or Crown Reserves for which Council is the Reserve Trust Manager.   

 

Council first considered the establishment of fees and charges for temporary market licences as part of its consideration of the new draft Market Policy at its Ordinary Meeting held 22 April 2010, with a report titled “Policy 5.51 – Markets on Council Owned and Controlled Land”, refer http://www.byron.nsw.gov.au/meetings/2010.   Management’s recommendation for establishing fees and charges for temporary markets was linked to the new draft Policy’s inclusion of provision for a temporary market licence.  The current draft Market Policy that is currently on public exhibition states at section 3.3 that:

 

A licence to conduct a temporary Market shall only be granted for a one-off, once a year Market conducted for not more than three (3) consecutive days and in accordance with the Local Government Act or Crown Lands Act.

 

The fees and charges for temporary market licence were intended by Management to apply to one-off, once a year Market.  The fee was recommended to ensure appropriate income is received by Council to maintain the asset based on the possible or known impact of the activity on that asset.  Market activities are considered to be high-impact activities for Council owned and controlled assets.

 

Council has had only one occasion to issue a temporary market licence that is not consistent with the original intent of applying the fee in one-off, once a year Market activities.    On 22 September 2011, Council considered a Notice of Motion titled “Approval of Byron Artisans Market”, refer www.byron.nsw.gov.au/meetings/2011-09-22-strategic.  After considering the Notice of Motion, the Committee resolved [11-743], in part, under delegated authority to:

 

1.   That Council, being aware of legal advice received on 20 September 2011 (#1143876) issue the Byron Bay Community Association (BBCA) a temporary licence to operate the Artisan Market at Railway Park, Byron Bay from 1 October 2011 until 7 April 2012, as per application received.

2.   That the General Manager issue the licence as per the regulating code 4.2. Development Consent, in the existing Markets within Byron Shire Policy.

3.   That the licence is considered temporary as a term of a standard licence is three

consecutive years, as stated within regulating code 4.3. Licence, in the existing Markets within Byron Shire Policy.

Management have issued the licence in accordance with the resolution and levied the adopted fees and charges for temporary market licences.   Council have received an application for a reduction in the temporary market licence fee from the Byron Bay Community Association, which is the subject of a report titled “Request for reduction in fees – Byron Artisan Market” that is included in this Ordinary Meeting Agenda for Council’s consideration.

 

In considering a review of the adopted temporary market fess and charges, Council may wish to consider issues associated with income generation to ensure sufficient income to maintain Council owned and controlled assets, consistency of fees and charges across Crown Reserve managed by Council and Council owned community land, and Policy consistency in relation to the application of temporary licence fees to occupy Council owned and controlled land.

 

If there is any review of the fees and charges for the Council Holiday Parks with a view to reduce them, this could possibly reduce the revenue of the Holiday Parks. 

 

Information received as a result of Park bookings concerning cabin utilisation and revenue over the peak December/January period of 2011/2012 compared to the same period of 2010/2011 has revealed the following results by Park:

 

·         Suffolk Park Beachfront Holiday Park over the December 2011/January 2012 peak period identified revenue increases of $2,588 in cabin bookings compared to the December 2010/January 2011 period.  Occupancy though fell from 90% over the December 2010/January 2011 period to 79% for the December 2011/January 2012 period.

·         First Sun Holiday Park over the December 2011/January 2012 peak period identified revenue increases of $50,739 in cabin bookings compared to the December 2010/January 2011 period.  Occupancy has remained consistent at 88% for all cabins at First Sun Holiday Park.

 

The fee for the Ocean View cabin at First Sun Holiday Park is currently $400 per night in the December/January peak period as identified in the Notice of Motion.  In regard to this cabin in isolation occupancy over the peak period of December/January was 96% in 2011/2012 compared to 87% in 2010/2011 when the fee was $290 per night. 

 

In the current and previous financial year there has been a significant investment in refurbishment of the cabins at First Sun Holiday Park that could suggest a justification for the increase in fees for cabins.

 

In relation to Council’s Holiday Parks, these are declared business units of Council.  At this Ordinary Council Meeting, Council is also provided with a report on the performance of its Holiday Parks for the 2010/2011 financial year compared to that of 2009/2010.  The report indicates whilst the Parks are profitable they are certainly not holding significant funds in reserve and provided a funding contribution of $814,900 to the General Fund in 2010/2011.  If it is considered to reduce cabin fees, this may have the potential to erode the existing profitability of the Parks and jeopardise the amount of contribution provided to the General Fund.

 

Legal and Policy Implications:

If Council are to amend any of the fees and charges identified by this Notice of Motion, it would be required to determine these by resolution and then advertise for public submissions for a period of 28 days in accordance with Section 610(F) of the Local Government Act 1993. 

 

 

GENERAL MANAGER’S REPORTS

 

Report No. 12.1.

Management Plan Review 2011-2014 for the period October to December 2011

General Manager

File No:                        FIN451010 #1177570

 

Principal Activity:

 

General Manager

Summary:

 

This report summarises the performance of the organisation against the adopted indicators in the Management Plan 2011-2014 for the quarter October to December 2011.  The majority of key performance indicators are on target.

 

 

RECOMMENDATION:

 

That Council receive and note the quarterly report and associated Annexures on the 2011-2014 Management Plan Review for the period 1 October to 31 December 2011.

 

 

Attachments:

 

·       December 11 Review of Principal Activities 1 to 22 #1177645 [76 pages].............................. Annexure 3(a)

·       December 11 Overview of Capital Expenditure – General Fund #1184923 [6 pages]............... Annexure 3(b)

·       December 11 Overview of Capital Expenditure – Water Fund #1184923 [2 pages].................. Annexure 3(c)

·       December 11 Overview of Capital Expenditure – Sewer Fund #1184923 [2 pages]................. Annexure 3(d)

·       Status Report – Grants Register #1189272, #1189273, #1189274 [4 pages]............................ Annexure 3(e)

·       Status Report Project Reference Groups #1183526 [8 pages]................................................ Annexure 3(f)


Report

 

The purpose of this report is to advise Council of the performance of the organisation against the specific measures and indicators for identified priorities in the Management Plan for the Quarter October to December 2011.

 

This is the Quarterly Report on the 2011-2014 Management Plan for the period to 31 December 2011.

 

The quarterly review report is provided for the public record.

 

Substantial work has been undertaken in relation to the activities and targets in the 2011-2014 Management Plan, with good progress recorded.

 

Details of progress are provided in Annexures 3(a) to 3(f).

 

It should be noted that the Environmental Laboratory Services Principal Activity is no longer required following Council’s Ordinary Meeting on 11 August 2011 and subsequent resolution
11-639.  The laboratory ceased operations on 28 September 2011.

 

Finance Implications

 

The Council’s financial performance for the Quarter is addressed separately in the Quarterly Budget Review. 

 

Statutory and Policy Compliance Implications

 

It is a statutory requirement that progress against the indicators in the Management Plan be considered by Council each Quarter.

 

 

 

Report No. 12.2.

Loss of Crown Caravan Parks administered by Byron Shire Holiday Parks Reserve Trust in 2006

General Manager

File No:                        BEN202000 #1181007

 

Principal Activity:

 

Executive Management

Summary:

 

During Council’s Ordinary Meeting of 15 December 2011, a number of observations and comments were made in relation to the loss in 2006 of a number of Council Controlled caravan parks to the then Department of Lands (DOL). A report produced by the DOL’s agent IAB Services is attached to this report in an attempt to give Councillors insight as to the reasoning behind the decision of the DOL to resume direct control of the caravan parks in question.

 

 

RECOMMENDATION:

 

That Council note the report.

 

 

Attachments:

 

·       Report commissioned by the then Department of Lands titled “A Management Review
of Crown Caravan Parks Administered by Byron Shire Holiday Parks Reserve Trust”
#1190761 [37 pages]..................................................................................................... Annexure 38(a)

·       Report Byron Shire Reserve Trust Committee Meeting #611819 [4 pages]........................ Annexure 38(b)

 

Report

 

During Council’s Ordinary Meeting of 15 December 2011, comment was made as to the reasons for Council’s loss to the Department of Lands of Terrace, Ferry Reserve and Massey Greene caravan parks in Brunswick Heads and Clarkes Beach at Byron Bay.

 

A report produced by IAB Services for the Department of Lands dated May 2005 concerning the management of Crown caravan parks by the Byron Shire is attached for Councillor’s information (the DOL/IAB report).

 

Reproduced below is an excerpt from the Executive Summary of the IAB Services report.

 

Summary of Key Findings

 

The key findings from our review are set out below.

 

We found that there is an urgent need to address the finalisation of management plans for the parks, as these delays are adversely impacting upon the validity of existing licences, expenditure on park assets, dealing with encroachment of buildings outside the site boundaries and insurance coverage of the parks. In addition, we are concerned that delays in addressing the noncompliant structures within three (3) of the parks may prevent relicensing of the parks in February 2006.

 

In summary, our findings for each area were as follows:

 

The three (3) items below identified during our review are deemed to be of ‘EXTREME RISK for DOL and should be given immediate management attention:

 

-          When the initial five (5) Crown Parks (including Broken Head) were licensed for a five (5) year term by Council’s Compliance Officer in February 2001, there were several conditions applied anticipating that the newly prepared draft POMs would be adopted within a short timeframe. For various reasons, Council acting as the Reserve Trust has not adopted these Plans and the Crown Parks are operating now in breach of the conditions of the licences. Moreover, it is highly unlikely that the Trust has the capacity to finalise the POMs and supervise the extensive upgrading and remedial work to enable the licences to be reissued in February 2006.

 

-          For the above reasons, we have recommended in our Detailed Report that the DOL take immediate action to initiate a management strategy to respond to the urgent breaches of the licence conditions and prepare the Crown Parks for extensive redevelopment in line with the previously adopted POM prepared in February 2000. We are concerned at the non-compliance of long-term dwellings at the three (3) Brunswick parks and the legality of operating the parks where issues identified by Council’s Compliance Officer in 2001 and made conditional upon the approval to operate have not yet been addressed. With the park licences due for renewal in February 2006, there is insufficient time available to make the Crown Parks compliant prior to this date without major management decisions that may involve closure of some of the parks. Such action will have a significant impact on a wide range of tourists and reflect adversely on the reputation of the Trust and the DOL will also have the potential for extensive media attention.

 

-          Two (2) of the parks are operating outside of their defined boundaries and Director, ATPM, Mr Tilton, who was the contracted manager at the time of the review, has advised us of recent enquiries by a previous on site manager at Suffolk Park to an insurer. The insurer confirmed that park managers would not be covered for public liability insurance purposes when working outside of the licensed area of the park. Mr Tilton advised further, that this Manager had sought an indemnity from Council but that this was not resolved prior to the Manager’s later departure. Council’s Director has provided a statement from Council’s insurer outlining its public liability coverage but we were unable to confirm the terms, conditions and exclusions of the contract and whether DOL and/or site management would be exempt from any claims made outside the current licensed boundaries. The major boundary issues are Massey Green where thirty five (35) sites and part of the amenities block has been identified as being outside the licensed area of the park. At Terrace, pending approval and implementation of the POM, there are sixteen (16) sites that are currently outside the current licensed park boundaries. Within the parks, many of the vans and annexes have extended outside the individual sites and many breach the conditions imposed by Council when issuing a licence in February 2011.

 

The other items that follow have a HIGH RISK rating, where urgent management attention is required.

 

-          There is evidence of a deterioration of assets and infrastructure with only limited capital expenditure over the past five (5) years, while the Trust was considering the POMs, which offered a new design outline for each of the parks. Maintenance expenditure has also been limited with higher priority being given to health and safety issues.

 

-          We found the facilities within the park to be of an average standard and identified OH&S issues including damage to the sewer line in Terrace, periodic sewer surcharge into the Manager’s residence at Ferry, non-replacement of slippery tiles in the amenities blocks and encroachment of verandas and gardens across site boundaries. In one case, an encroachment of a garden onto an access road within Terrace resulted in a serious accident earlier this year to a young visitor who was injured when he fell from his bicycle on to a garden stake and impaled his knee.

 

-          There is currently no formal separation of policy determination by the Trust and the operational role of Council administration, which has led to claims of community influence interfering with the good management of the Crown Parks. Strategic decision making by the current Trust in resolving the key POMs has been delayed and at Ferry altered to reflect the minority concerns of some local residents upon personal representations at Trust Meetings.

 

Conclusion

 

Based on our management review, the three (3) Brunswick Heads Crown Parks are continuing to operate in breach of the licence conditions issued by Council in February 2001. Deferral of POMs by the Trust has failed to take into consideration the impact of non-compliance to the licence conditions and the corresponding OH&S, legal and risk exposures to itself and the DOL. The DOL needs to instruct the Trust to immediately address the outstanding non-compliance issues and boundary realignments to ensure the park operations meet all legal and statutory requirements or alternatively implement separate management options.

 

The copy DOL/IAB Report was received by Council on 22 December 2006, after Council lodged applications under the then Freedom of Information Act (FOI). A copy of the report was circulated to then Councillors under memo dated 19 January 2007 (#650102).

 

The DOL/IAB Report bears the notation ‘confidential’ on the front page, however, it was released to Council under FOI and is therefore not confidential. Mr Graham Harding of the now Crown Lands Division of the Department of Primary Industries, confirmed verbally last week that the Division had no objections to the publication of the DOL/IAB Report as an attachment to this report.

 

Financial Implications

 

This report relates to matters considered by Council in 2006 and is submitted for information only. There are no financial implications arising from Council’s consideration of this report at this time.

 

Statutory and Policy Compliance Implications

 

This report is for information only and does not have any statutory or policy compliance implications.

 

 

 

Report No. 12.3.

Constitutional Recognition of Local Government

General Manager

File No:                        COR050505 #1187066

 

Principal Activity:

 

Executive Management

Summary:

 

The Local Government Shires Association of NSW (LGSA) has written to Council seeking support in a national advertising campaign aimed at achieving Constitutional Recognition of Local Government.

 

They have requested Byron Shire Council contribute a special levy of $17,247.09, payable in three instalments over three financial years. In addition, there will also be supplementary work for all councils to do for the campaign at a local level.

 

 

RECOMMENDATION:

 

1.       That Council support the Local Government Association of NSW to achieve Constitutional Recognition of Local Government.

 

2.       That Council allocate funding of $17,247.09 in three equal instalments over three financial years (commencing 2012/13).

 

3.       That Council note, in supporting the campaign, additional work will be required by Byron Shire Council staff to address issues at the local level.

 

 

Attachments:

 

·       Letter from Local Government Association of NSW #1185851 [2 pages].............................. Annexure 28

 

Report

 

The LGSA has written to Council seeking support for a national advertising campaign aimed at achieving Constitutional Recognition of Local Government.

 

At the next Federal election, a referendum will be held to include recognition of Local Government in the Australian Constitution. The Australian Local Government Association (ALGA) is leading the campaign on behalf of Local Government across the country and to date more than 85% of councils have moved to support the Constitution Recognition of Local Government.

 

It is expected the national campaign will cost in excess of $10 million, with $2.7 million coming from NSW Councils. The LGSA have requested Byron Shire Council to contribute a special levy of $17,247.09, payable in three instalments over three financial years. These funds will be used in the national campaign being coordinated by the ALGA. In addition to the financial contribution, there will also be supplementary work for all councils to do for the campaign at a local level.

 

The LGSA has also committed $200,000 in the current financial year to raising the profile of local government in NSW and a further $1,000,000 will be committed over the next two financial years for promotional activities and advertising.

 

Should the referendum or the national advertising campaign not go ahead for any reason, instalments paid to the LGSA will be refunded.

 

Financial Implications

 

$17,247.09, payable in three instalments over three financial years (commencing 2012/13).

 

Statutory and Policy Compliance Implications

 

Nil.

 

 

COMMUNITY INFRASTRUCTURE – EXECUTIVE MANAGER’S REPORTS

 

Report No. 12.4.

Report of Belongil Creek Floodplain Risk Management Committee meeting held on 13 December 2011

Executive Manager:   Community Infrastructure

File No:                        ENG091019 #1181460

 

Principal Activity:

 

Infrastructure Planning and Project Definition

Summary:

 

The Belongil Creek Floodplain Risk Management Committee (BCFRMC) met on 13 December 2011.

 

This report presents the minutes and recommendations arising from that meeting.

 

 

RECOMMENDATION:

 

1.       That Council note the minutes of the Belongil Creek Floodplain Risk Management Committee (BCFRMC) Meeting held on 13 December 2011 (Annexure 10(a), #1182550).

        

2.       That in relation to Report 4.1 – Presentation of Discussion Papers 5 to 7 (#1165811), Council adopt:

 

Committee Recommendation BCFRMC 4.1

 

a)    That the following recommendations be added to the Draft Belongil Creek Flood Risk Management Study and Plan:

 

i)     Installation of additional rainfall gauges in the Belongil catchment.

ii)    Installation of an ALERT water level gauge at the Ewingsdale Road Bridge.

iii)   Implementation of a multi-faceted community flood awareness campaign targeting accommodation providers and new residents, as well as existing residents.

iv)   Development of a flood information data set linking water levels to real world outcomes. In order to develop a flood action plan or flood intelligence card which can help Council or the SES understand how a predicted flood water level will affect the community.

v)    Implementation of an automated telephone and/or SMS flood warning system.

vi)   A review of existing SES emergency procedures using design flood information.

vii)  A review of flood and evacuation warning procedures. A wide range of warning methods should be considered and planned for well in advance of future flood events.

viii)            Identification of an alternative evacuation route. An alternative to Jonson Street is recommended which has greater flood immunity. It is recommended that the SES investigate this alterative and, if deemed suitable, it be adopted in the Byron Shire Local Flood Plan.

ix)  Prioritise evacuation of Belongil Spit. Early and prioritised evacuation of the Belongil Spit area would ensure that the most vulnerable residents have the potential to evacuate prior to the onset of flooding. It is recommended that the SES identify triggers which would prompt the evacuation of Belongil Spit before other areas in the catchment. It is also recommended that the residents in the Belongil Spit area are educated about their increased flood risk and the likelihood of early evacuation.

x)   Discussion Paper 5 be amended to list the correct responsibilities of the SES, namely that the Bureau of Meteorology is the legislated organisation that issues flood warnings, and amend the emergency response recommendations in discussion paper 5 to incorporate a layered warning system which includes sirens.

 

b)    That a Flood Planning Matrix be recommended for inclusion in Council’s Development Control Plan for Flood as part of the recommendations within the Draft Belongil Creek Flood Risk Management Study and Plan.

 

          The proposed planning matrix would:

i)    More stringently restrict incompatible floodplain development within high hazard areas of the floodplain.

ii)   Restrict development of critical Infrastructure and emergency services to flood liable lands.

iii)  Prescriptively list development control measures based on land-use type and flood hazard category.

iv)  The controls within the Planning Matrix would be based on current flood risk and future flood risk increases due to climate change projections have been taken into account where appropriate.

 

c)    i)     That the one (1) property that has been identified as eligible for voluntary house purchase and the four (4) properties that have been identified as eligible for voluntary house raising be listed in the Draft Belongil Creek Flood Risk Management Study and Plan.

       ii)    That additional properties, which were included in the voluntary house raising assessment, be considered for flood proofing.

 

d)    The flood planning level in the draft Byron LEP be based on 2100 event and that the draft DCP for flooding include controls for FPL1, FPL2 and FPL3, based on updated Discussion Paper 7 (#1173861, #1173875).

 

3.       That in relation to Report 4.2 – Amended Constitution (#1169811), Council adopt:

 

Committee Recommendation BCFRMC 4.2

 

That Council endorse the Belongil Creek Floodplain Risk Management Committee Constitution (Annexure 10(k), #1169595) to be amended to accord with resolutions 10-1066 and 11-360, Council’s advisory committee constitution template and the NSW Floodplain Development Manual.

 

4.       That in relation to Agenda Item 5.2 – Flood Modification Measures (#1159552), Council adopt:

 

Committee Recommendation BCFRMC 5.2

 

The committee recommends that the consultant prepare a report which identifies tangible cost/benefits relating to four flood modification measures, which include:

 

a) Training the Belongil Creek mouth versus existing opening strategy.

b) The Byron Bay Drainage Strategy 2010 including identification of structures that may need modification.

c) A full maintenance program for the existing drainage system.

d) Cost/benefit analysis of works on the Clarkes Beach drain.

 

Attachments:

 

·       Unconfirmed Report BCFRMC meeting 13 December 2011 #1182550 [3 pages]................ Annexure 10(a)

·       Agenda BCFRMC meeting 13 December 2011 #1189996 [11 pages]................................ Annexure 10(b)

·       BCFRMC meeting 13 December 2011 Annexures Part 1 #1190000 [33 pages]................... Annexure 10(c)

·       BCFRMC meeting 13 December 2011 Annexures Part 2 #1190002 [61 pages]................... Annexure 10(d)

·       BCFRMC meeting 13 December 2011 Annexures Part 3 #1190006 [21 pages]................... Annexure 10(e)

·       BCFRMC meeting 13 December 2011 Annexures Part 4 #1190008 [26 pages].................... Annexure 10(f)

·       Updated Discussion Paper 5 Response Modification #1173868 [33 pages]...................... Annexure 10(g)

·       Updated Discussion paper 6 Property Modification #1173872 [61 pages]........................ Annexure 10(h)

·       Updated Discussion paper 7 Climate Change (part A) #1190011 [21 pages]...................... Annexure 10(i)

·       Updated Discussion paper 7 Climate Change (part B) #1190020 [29 pages]...................... Annexure 10(j)

·       BCFRMC Constitution #1169595 [6 pages]...................................................................... Annexure 10(k)

 

 

Annexures 10(b)-(j) have been provided on the Councillors' Agenda CD only; electronic copies can be viewed on Council’s website.

 

Report

 

This report provides the recommendations of the Belongil Creek Floodplain Risk Management Committee (BCFRMC) meeting of 13 December 2011, for determination by Council.

 

Committee Recommendation BCFRMC 4.1

 

1.       That the following recommendations be added to the Draft Belongil Creek Flood Risk Management Study and Plan:

 

a)    Installation of additional rainfall gauges in the Belongil catchment.

b)    Installation of an ALERT water level gauge at the Ewingsdale Road Bridge.

c)    Implementation of a multi-faceted community flood awareness campaign targeting accommodation providers and new residents, as well as existing residents.

d)    Development of a flood information data set linking water levels to real world outcomes. In order to develop a flood action plan or flood intelligence card which can help Council or the SES understand how a predicted flood water level will affect the community.

e)    Implementation of an automated telephone and/or SMS flood warning system.

f)     A review of existing SES emergency procedures using design flood information.

g)    A review of flood and evacuation warning procedures. A wide range of warning methods should be considered and planned for well in advance of future flood events.

h)    Identification of an alternative evacuation route. An alternative to Jonson Street is recommended which has greater flood immunity. It is recommended that the SES investigate this alterative and, if deemed suitable, it be adopted in the Byron Shire Local Flood Plan.

i)     Prioritise evacuation of Belongil Spit. Early and prioritised evacuation of the Belongil Spit area would ensure that the most vulnerable residents have the potential to evacuate prior to the onset of flooding. It is recommended that the SES identify triggers which would prompt the evacuation of Belongil Spit before other areas in the catchment. It is also recommended that the residents in the Belongil Spit area are educated about their increased flood risk and the likelihood of early evacuation.

j)     Discussion Paper 5 be amended to list the correct responsibilities of the SES, namely that the Bureau of Meteorology is the legislated organisation that issues flood warnings, and amend the emergency response recommendations in discussion paper 5 to incorporate a layered warning system which includes sirens.

 

2.       That a Flood Planning Matrix be recommended for inclusion in Council’s Development Control Plan for Flood as part of the recommendations within the Draft Belongil Creek Flood Risk Management Study and Plan.

 

          The proposed planning matrix would:

 

a)    More stringently restrict incompatible floodplain development within high hazard areas of the floodplain.

b)    Restrict development of critical Infrastructure and emergency services to flood liable lands.

c)    Prescriptively list development control measures based on land-use type and flood hazard category.

d)    The controls within the Planning Matrix would be based on current flood risk and future flood risk increases due to climate change projections have been taken into account where appropriate.

 

3.       a)    That the one (1) property that has been identified as eligible for voluntary house purchase and the four (4) properties that have been identified as eligible for voluntary house raising, within Annexure 1(b) of this report, be listed in the Draft Belongil Creek Flood Risk Management Study and Plan.

b)    That additional properties, which were included in the voluntary house raising assessment, be considered for flood proofing.

 

4.       The flood planning level in the draft Byron LEP be based on 2100 event and that the draft DCP for flooding include controls for FPL1, FPL2 and FPL3, based on updated Discussion Paper 7 (#1173861, #1173875).

 

Committee Recommendation BCFRMC 4.2

 

That Council endorse the Belongil Creek Floodplain Risk Management Committee Constitution (Annexure 2(a) #1169595) to be amended to accord with resolutions 10-1066 and 11-360, Council’s advisory committee constitution template and the NSW Floodplain Development Manual.

 

Committee Recommendation BCFRMC 5.2

 

The committee recommends that the consultant prepare a report which identifies tangible cost/benefits relating to four flood modification measures, which include:

 

a)      Training the Belongil Creek mouth versus existing opening strategy.

b)      The Byron Bay Drainage Strategy 2010 including identification of structures that may need modification.

c)      A full maintenance program for the existing drainage system.

d)      Cost/benefit analysis of works on the Clarkes Beach drain.

 

Management Comments BCFRMC Recommendation 4.1

 

Management support the recommendation as written.

 

Management Comments BCFRMC Recommendation 4.2

 

Management has requested the Department of Environment, Climate Change & Water to provide formal confirmation of the NSW Floodplain Development Manual guidelines regarding Committee members’ voting rights.  Management will update the constitution in accordance with these guidelines.

 

Management Comments BCFRMC Recommendation 5.2

 

Management support the recommendation as written.

 

Financial Implications

 

All proposed actions are within the existing contract and will not increase any costs beyond that already approved.

 

Statutory and Policy Compliance Implications

 

None.

 

 

 

Report No. 12.5.

Report of North Byron Coastal Creeks Floodplain Risk Management Committee meeting held on 13 December 2011

Executive Manager:   Community Infrastructure

File No:                        ENG0910201 #1181570

 

Principal Activity:

 

Infrastructure Planning and Project Definition

Summary:

 

The North Byron Coastal Creeks Floodplain Risk Management Committee (NBCCFRMC) met on 13 December 2011.

 

This report presents the minutes and recommendations arising from that meeting.

 

 

RECOMMENDATION:

 

1.       That Council note the minutes of the North Byron Coastal Creeks Floodplain Risk Management Committee (NBCCFRMC) meeting held on 13 December 2011 (Annexure 11(a), #1182551).

 

2.       That in relation to Report 4.1 - Presentation and Acceptance of Model Calibration (#1165826), Council adopt:

 

Committee Recommendation NBCCFRMC 4.1.1

 

That Council note the results of the BMT WBM calibration assessment (Annexure 11(c) #1174610) and that the accuracy of the calibration is of a sufficient level that the model can now be used for the preparation of design flood event mapping for the final flood study. 

 

The committee accept the report on the proviso that the consultants (BMT WBM) meet with Mr Lambourne and discuss apparent discrepancies of rainfall data and that a review of assumptions regarding entrance maximum depth of scour is undertaken.

 

3.       That in relation to Report 4.1 - Presentation and Acceptance of Model Calibration (#1165826), Council adopt

 

Committee Recommendation NBCCFRMC 4.1.2

 

That BMT WBM provide the committee with a more detailed analysis of the resident survey including information about what geographic areas the survey respondents come from and their suggestions for reducing flooding, in accordance with the government guidelines on floodplain management.

 

4.       That in relation to Report 4.2 – Amended Constitution (#1169636), Council adopt:

 

Committee Recommendation NBCCFRMC 4.2.1

 

That Council endorse the North Byron Coastal Creeks Floodplain Risk Management Committee Constitution (Annexure 11(d), #1169503) to be amended to accord with resolutions 10-1066 and 11-360, Council’s advisory committee constitution template and the NSW Floodplain Development Manual.

 

Attachments:

 

·       Unconfirmed Report NBCCFRMC meeting 13 December 2011 #1182551 [2 pages]........... Annexure 11(a)

·       Agenda and annexures NBCCFRMC meeting 13 December 2011 #1182552 [65 pages]..... Annexure 11(b)

·       North Byron Coastal Creeks Flood Study FINAL Model Calibration #1174610 [64 pages]... Annexure 11(c)

·       NBCCFRMC Constitution #1169503 [6 pages]................................................................. Annexure 11(d)

 

 

Annexures 11(b) and 11(c) have been provided on the Councillors' Agenda CD only; electronic copies can be viewed on Council's website.

 

Report

 

This report provides the recommendations of the North Byron Coastal Creeks Floodplain Risk Management Committee (NBCCFRMC) meeting of 13 December 2011, for determination by Council.

 

Committee Recommendation NBCCFRMC 4.1.1

That Council note the results of the BMT WBM calibration assessment #1174610 (as provided under memo #1170748) and that the accuracy of the calibration is of a sufficient level that the model can now be used for the preparation of design flood event mapping for the final flood study. 

 

The committee accept the report on the proviso that the consultants (BMT WBM) meet with Mr Lambourne and discuss apparent discrepancies of rainfall data and that a review of assumptions regarding entrance maximum depth of scour is undertaken.

 

Committee Recommendation NBCCFRMC 4.1.2

It was requested that BMT WBM provide the committee with a more detailed analysis of the resident survey including information about what geographic areas the survey respondents come from and their suggestions for reducing flooding, in accordance with the government guidelines on floodplain management.

 

Committee Recommendation NBCCFRMC 4.2.1

That Council endorse the North Byron Coastal Creeks Floodplain Risk Management Committee Constitution (#1169503) to be amended to accord with resolutions 10-1066 and 11-360, Council’s advisory committee constitution template and the NSW Floodplain Development Manual.

 

Management Comments NBCCFRMC 4.1.1

Management support the recommendation noting that any discussions held between the Community Representative Mr Lambourne, with the Consultants, is to be reported back through the committee prior to inclusion of any findings into the model and reports.

 

Management Comments NBCCFRMC 4.1.2

Management support the recommendation as written.

 

Management Comments NBCCFRMC 4.2.1

Management has requested the Department of Environment, Climate Change & Water to provide formal confirmation of the NSW Floodplain Development Manual guidelines regarding Committee members’ voting rights.  Management will update the constitution in accordance with these guidelines.

 

Financial Implications

 

All proposed actions are within the existing contract and will not increase any costs beyond that already approved.

 

Statutory and Policy Compliance Implications

 

None.

 

 

 

Report No. 12.6.

Public submissions on Draft Policy for Wet Weather Sporting Ground Closures

Executive Manager:   Community Infrastructure

File No:                        COR050505 #1169508

 

Principal Activity:

 

Open Space and Recreation

Summary:

 

At the Ordinary Meeting of 28 April 2011 Council resolved to place the draft Wet Weather Sporting Ground Closures Policy on public exhibition for a minimum period of 28 days.

 

Minor changes to the draft policy were undertaken in accordance with Council resolution 11-363.

 

Council received one submission during the exhibition period, which was generally in support of the draft policy but requested one change. The requested change is not supported by management.

 

 

RECOMMENDATION:

 

1.       That Council note the one public submission received on the draft Wet Weather Sporting Ground Closure Policy but not support the requested change.

 

2.       That Council adopt the Wet Weather Sporting Ground Closures Policy as publicly exhibited and attached as Annexure 2(b) (#1190285).

 

3.       That a reply be provided to the one public submission received.

 

 

Attachments:

 

·       CONFIDENTIAL Submission #1134501 [4 pages]............................................................ Annexure 2(a)

·       Draft Wet Weather Sporting Grounds Closure Policy – Version 2 #1190285 [8 pages]......... Annexure 2(b)

 

Report

 

Council at its meeting of 28 April 2011 resolved:

 

11-363 Resolved:

 

1.    That the Draft Wet Weather Sporting Ground Policy (#1080432) be advertised for public comment for a minimum period of 28 days with amendments:

(a)   numbering

(b)   inclusion of Section 3 Notification (first paragraph in annexure 1) and items in annexure 1 be numbered and to include ABC radio and Bay FM text/email messaging service.

 

2.    That the outcome of the public consultation process be reported back to Council for consideration.

 

3     Insert as new point 2.5 Council reserves the right to open and close sportsfields as it sees fit.

 

4.    Remove in 2.4 the word inclement and replace with wet.

 

5.    Remove the words in 1.1 during periods of prolonged wet weather and insert due to wet weather.

 

6.    Page 8 paragraph 2 delete irreparable and insert substantial.

 

The draft policy was revised in accordance with the Council resolution 11-363 and placed on public exhibition (#1190285).

 

One submission was received during the exhibition period and is attached to this report as a confidential attachment at Annexure 2(a).  The issue raised is detailed in Table 1.

 

Table 1. Submission response table

 

Submission Ref.

Issue Raised

Comment

#1134501

Annexure  2(a)

“The need for club officials over a weekend period to have the discretion to open and close fields for either safety and damage, or conversely, to continue games and scheduled competition if weather has abated and fields have dried out in the course of the 24 - 36hrs following Council’s decisions to close the fields on Friday.”

The purpose of the policy is to provide a framework for the management of sporting grounds during wet weather.

 

It is not recommended to change the draft policy as publicly exhibited. The best option is for Council staff to control the closure and opening of sporting grounds.

 

The best option for Council is for staff to control when sportsfields are closed and opened. The closures will be done after a site inspection and assessment including due consideration of the condition of the grounds and the forecasted weather conditions. The risks associated with any decision will be with staff and fully in Council’s control. This will minimise the risk of injury to participants and spectators and minimise public liability insurance claims and damage to sportsfields.

 

Financial Implications

 

Administration for the implementation of the policy would be undertaken by Works Administration Staff and Open Space and Recreation staff.  These activities are already undertaken within the existing budget.

 

Statutory and Policy Compliance Implications

 

Local Government Act 2003

Crown Lands Act 1989

NSW Occupational Health and Safety Act 2000

 

 

 

Report No. 12.7.

Naming of Fields at Bangalow and Byron Regional Sport and Cultural Complex

Executive Manager:   Community Infrastructure

File No:                        COR050505 #1182400

 

Principal Activity:

 

Open Space and Recreation

Summary:

 

At the Ordinary Meeting of 8 September 2011 Council resolved to place the Community requests received for the naming of Sportsfields at Bangalow and the Byron Regional Sports and Cultural Complex (BRSCC) on public exhibition for a minimum period of 28 days.

 

All relevant families provided concurrence and gratitude with the requests from the Community.

 

The Bangalow Sports Association requested an amendment to their proposal that the western field be named ‘Jeff Schneider Field’, rather than Jeff Schneider Oval as originally proposed.

 

Council received one submission only during the exhibition period, which suggested an alternative name for a non-identified sports field within the Shire.

 

 

RECOMMENDATION:

 

1.       That Council note the one public submission received for the community requests for the naming of sportsfields at Bangalow and the BRSCC.

 

2.       That Council adopt the:

a)      naming of the north-western portion of the Byron Regional Sport and Cultural Complex (BRSCC) as the ‘Cornell Family Fields’;

b)      naming of the north eastern portion of the BRSCC as ‘Herb Elliott Field’;

c)      naming of the western portion of the Bangalow Sporting fields as the ‘Jeff Schneider Field’.

 

 

Attachments:

 

·       CONFIDENTIAL Submission #1162432 [3 pages]........................................................... Annexure 15(a)

·       CONFIDENTIAL Email from Bangalow Sports Association #1183895 [1 page]….............. Annexure 15(b)

 

Report

 

Council at its meeting of 8 September 2011 resolved:

 

11-708 Resolved:

 

1.       That subject to concurrence from relevant families or individuals, Council endorses

 

a)      the application for naming the north-western portion of the Byron Regional Sport and Cultural Complex (BRSCC) the “Cornell Family Fields”

b)      the application for naming the north-eastern portion of the BRSCC the “Herb Elliott Field”

c)      the application for naming the western portion of the Bangalow Sportsfields the “Jeff Schneider Oval”

 

2.       That following Council’s consideration, endorsed applications be placed on public exhibition for a period of 28 days for public comment, with any objects being reported back to Council.

 

3.       Following this exhibition period, applications to be forwarded to the Geographical Names Board of NSW for registration.

 

4.       Following this exhibition period, applications to be forwarded to the Geographical Names Board of NSW for registration.

 

One submission was received during the exhibition period and is attached to this report as Annexure 15(a).  The issue raised is detailed in Table 1.

 

Table 1. Submission response

 

Submission Ref.

Issue Raised

Comment

#1162432

 

The proposal to name a sporting venue within the Byron Shire as ‘The Pioneers’ Memorial Sportsfield’ in order to recognise all past and present residents of the Byron Shire who have been instrumental in the history and development of the Shire.

While the achievements of our pioneers are respected, the suggested name may be more fitting for a length of road, or a bridge associated with early settlement.

 

 

Financial Implications

 

The cost of timber routed signs (inclusive of GST) 190mm high with 125mm lettering is as follows:

 

Cornell Family Fields

$540

Herb Elliott Field

$471

Jeff Schneider Field

$493

 

Funds for these signs are available in Sportsfield Upgrade account.

 

Statutory and Policy Compliance Implications

 

The proposals comply with Council’s Policy No 11/004 Naming of Public Places and Community Facilities.

 

The guidelines provided by the Geographical Names Board (GNB) recommend that local councils do not prepare proposals to name features after living persons, but that the naming of a particular community facility such as a building or oval is acceptable.

 

 

 

Report No. 12.8.

Status report on Fleet Management Action Plan

Executive Manager:   Community Infrastructure

File No:                        ENG550000 #1185516

 

Principal Activity:

 

Plant and Resources

Summary:

 

To provide Council with a status report on implementing the adopted Action Plan from the external review of our Fleet Management.

 

 

RECOMMENDATION:

 

1.    That Council endorses the Fleet Management Action Plan - Revision 1 (#1186844 Annexure 27).

 

2.    That the Fleet Management Action Plan is implemented as funding and existing staff resources permit.

 

3.    That Council receive another progress report on the implementation of the Fleet Management Action Plan in August 2012.

 

 

Attachments:

 

·       Fleet Management Action Plan – Revision 1 #1184431 [17 pages]........................................ Annexure 27

 

Report

 

Council, at its meeting on 24 June 2010, considered a report on the Light Fleet Review, including the project brief for the external Fleet Management Review and resolved:

 

Resolution 10-499

 

4.    That Council note the intended further review of both light and heavy fleet, with the costs of same to be funded from the Plant Reserve.

 

Uniqco International Vehicle Management P/L was awarded the Fleet Management Review after an open, competitive procurement process across Australia.  They commenced the review on 19 October 2010 and completed it with the presentation of their report to the Internal Audit Committee at their meeting on 15 December 2010.

 

The recommendations from the Internal Audit Committee meeting were considered by Council at the meeting on 10 February 2011 with the following resolution:

 

Resolution 11-28

 

(a)   Council notes the report on the Fleet Management Review and endorses the Fleet Management Action Plan.

(b)   The Fleet Management Action Plan is implemented as funding and resources permit.

(c)   Council receive progress reports on the implementation of the Fleet Management Action Plan.

 

There were fifty seven (57) recommendations in the final Uniqco report presented to the Internal Audit Committee.  These have been formulated into the Fleet Management Action Plan, which has been updated as at 12 January 2012 as Revision 1.  A copy is provided as Annexure 27.

 

The progress to date in implementing the fifty seven (57) recommendations is:

 

Completed Actions

 

Current practice met Uniqco recommendation

11

Actions completed since review

14

 

 

Actions to be Completed by

 

June 2012

22

December 2012

4

After 2012

6

Total Actions

57

 

Of the twenty two (22) actions to be completed by June 2012, eleven (11) are associated with the AusFleet Fleet Management software. This software was upgraded to the new version in the later part of 2011.  To more quickly implement the items in the adopted Action Plan and make the necessary changes to our fleet management, there needs to be better use of the Ausfleet software.  This will be achieved through a facilitated site based training programme of staff in the first half of 2012.

 

The other actions will be implemented as funding and existing staff resources permit.  It is anticipated that eleven (11) will be achieved by June 2012 and another four (4) by December 2012.

 

The timing of the final six (6) actions has not been determined yet.  Three (3) actions are long term and more realistic target dates will be set after the AusFleet training programme has been completed and the other fifteen (15) actions completed during 2012.  Three (3) actions will now be done in conjunction with actioning the Council resolutions from the cost / benefit review of Community Infrastructure and Water and Recycling Divisions.  The target dates for these resolutions have not been finalised at the time of writing this report.  It is anticipated that the majority of the resolutions will be done some time in the first six to eight months of 2012.

 

Financial Implications

 

There are no negative financial implications proposed in this report.

 

Statutory and Policy Compliance Implications

 

There are no negative statutory and policy compliance implications proposed in this report.

 

 

 

CORPORATE MANAGEMENT – EXECUTIVE MANAGER’S REPORTS

 

Report No. 12.9.

Local Government Elections September 2012 Key Dates – Constitutional Referendum or Council Poll

Executive Manager:   Corporate Management

File No:                        ADM450000 #1182845

 

Principal Activity:

 

Corporate Management – Governance and Administration Services

Summary:

 

Council is required to advise the NSW Electoral Commission by 30 April 2012 if it wishes to conduct a Constitutional Referendum or Council Poll at the Local Government Elections to be held on Saturday 8 September 2012.

 

For your information key dates have also been published for the upcoming election.

 

 

RECOMMENDATION:

 

1.       That the information provided by the NSW Electoral Commission on the LG Election to be held on 8 September 2012 be noted.

2.       That Council advise the NSW Electoral Commission that it will not be holding a Constitution Referendum or Council Poll at the next election.

 

 

Attachments:

 

·       Letter from Electoral Commission NSW enclosing Service Level Document
#1179205 [18 pages]..................................................................................................... Annexure 14(a)

·       Division of Local Government Circular No. 11-30 Constitutional Referendums
#1149755 [4 pages]....................................................................................................... Annexure 14(b)


Report

 

Council at its meeting held on 13 October 2011 resolved via Resolution 11-764 to “engage the NSW Electoral Commission to administer any elections, referendums and polls until the conclusion of the September 2012 ordinary elections”.

 

The Electoral Commission in correspondence dated 16 December 2011 advised Council of the Commission’s Service Level Document and of the proposed regions where councils will share a returning officer. The Electoral Commission in this correspondence also requested details of whether Council proposes to hold a Constitutional Referendum or Council Poll at the 2012 Local Government Election.

 

For your information a copy of the Electoral Commission NSW’s (EC) letter and Service Level Document is shown at Annexure 14(a).

 

The EC requested Council’s acceptance of Byron Shire Council sharing a returning officer with Ballina Shire Council by 13 January 2012.  For your information management responded to this matter advising as follows:

 

“With regard to your advice regarding “Regions where councils will share a returning officer”, Council has no objection to sharing a Returning Officer (RO) with Ballina Shire Council. 

 

Council does request however that the Commission give consideration of the preferred location of the Regional RO to be located in Byron Shire.  At the 2008 Local Government Election the RO was situated in Ballina and Council received several objections from scrutineers having to travel to Ballina to scrutinise the election process.”

 

The EC will discuss this matter with the General Manager prior to making a final decision and Council will be advised accordingly of the decision once made.

 

The EC also requests to be notified by 30 April 2012 if Council proposes to conduct a Constitutional Referendum or Poll at the next election. It has been noted by management that there has been no requests or resolutions made by Council requiring a Referendum or Poll to be held at the next Local Government Election.  It should be noted that if Council does resolve to hold a Constitutional Referendum or a Council Poll the actual wording of the questions will not be required until 30 June 2012. 

 

For Council’s information the following are Key Election Dates (as currently anticipated).

 

Key Election Dates (as currently anticipated) 

April 2012

Candidate nomination forms/manuals available

mid May 2012

Expressions of Interest opens for election officials/office assistants

May/June 2012

Candidate Seminars

30 July 2012

Close of Authorised Roll (6.00pm)
Open Nominations

8 August 2012

Close of Nominations (12.00 noon)

Registration of Electoral Material (how-to-vote) opens

27 August 2012

Pre-poll voting starts

31 August 2012

Registration of how-to-vote closes (5.00pm)

3 September 2012

Postal Vote Applications close (5.00pm)

7 September 2012

Pre-poll voting closes (6.00pm)

8 September 2012

Election Day

10 September 2012

Return of Postal Votes closes (6.00pm)

 

Financial Implications

 

Council has requested from the NSWEC confirmation of the estimated costs to conduct the election so this can be included in the 2012/13 draft budget.

 

If a Constitutional Referendum or Poll were to be held at the next LG Election, additional costs would be required to be budgeted for at the time of adopting the 2012/13 Budget.

 

Statutory and Policy Compliance Implications

 

The Department of Premier and Cabinet, Division of Local Government issued Circular 11-30 on 6 October 2011 on amendments to the Act with regard to Constitutional Referendums. See Attachment 14(b).

 

Extracts from the Local Government Act 1993 regarding Council’s Polls and Constitutional Referendums are as follows;

 

Part 3 Expressions of community opinion

 

Division 1 Council polls

 

14   Council polls

A council may take a poll of electors for its information and guidance on any matter.

 

Division 2 Constitutional referendums

 

15   What is a constitutional referendum?

A constitutional referendum is a poll initiated by a council in order to give effect to a matter referred to in section 16.

 

16   What matters must be dealt with at a constitutional referendum?

A council may not do any of the following unless approval to do so has been given at a constitutional referendum:

(a)  divide its area into wards or abolish all wards in its area,

(b)  change the basis on which the mayor attains office (that is, by election by the councillors or by election by the electors),

(c)  increase or decrease the number of councillors in accordance with the limits under section 224,

(d)  change the method of ordinary election of councillors for an area divided into wards.

(e)  (Repealed)

 

17   What is the effect of a constitutional referendum?

(1)  The decision made at a constitutional referendum binds the council until changed by a subsequent constitutional referendum.

(2)  However, such a decision does not apply to a by-election held after the constitutional referendum and before the next ordinary election.

 


Division 3 General provisions concerning a council poll or constitutional referendum

 

18   What provisions apply to the conduct of a council poll or constitutional referendum?

Part 1 and Part 6 (except Divisions 3, 4 and 5) of Chapter 10 (How are people elected to civic office?) apply to a council poll, and Part 1 and Part 6 (except Divisions 3 and 5) of that Chapter apply to a constitutional referendum, with such modifications as may be necessary, in the same way as they apply to an election.

 

Note. Part 1 of Chapter 10 identifies the people who are entitled to vote in council elections, and Part 6 governs the conduct of those elections.

Division 3 of Part 6 of that Chapter deals with nominations for election, Division 4 with failure to vote and Division 5 with miscellaneous matters such as irregularities of form or procedure in elections, overdue elections and those declared void.

 

19   Day for taking council poll or constitutional referendum

A council poll or constitutional referendum may be taken on any Saturday, including the Saturday of an ordinary election.

 

20   When is a question at a council poll or constitutional referendum carried?

(1) The question at a council poll or constitutional referendum is carried if it is supported by a majority of the votes cast.

(2) The reference to votes in subsection (1) does not include a reference to any vote that, pursuant to the regulations, is found to be informal.


Expressions of community opinion

Types of expression

Council Poll

Constitutional Referendum

Question to be determined

Any question

•  Creation or abolition of all wards

•  Change in the way in which the mayor is chosen

•  Change in number of councillors

•  Change in the way councillors are elected for an area divided into wards

Result of Poll

If Yes

If No

If Yes

If No

Council chooses whether or not to proceed

Change must proceed

Change cannot proceed until passed by a later constitutional referendum

 

 

 

 

Report No. 12.10.

Draft Guidelines - Section 355 Management Committees

Executive Manager:   Corporate Management

File No:                        ADM252000 #1185008

 

Principal Activity:

 

Governance and Administration Services – Section 355 Committee Development

 

Summary:

 

Council originally adopted its Section 355 Committee Guidelines in August 1999.  The Guidelines have been amended over the years where required.

 

A networking meeting was held in July 2011 wherein it was advised that the Guidelines were being redrafted to reflect up to date practices and Committee members advised of areas of clarification required in the Guidelines.

 

 

RECOMMENDATION:

 

1.       That the draft Section 355 Committee Guidelines as shown at Annexure 25 (#1098905) be placed on exhibition for a period of 28 days and allowing a further 28 days for the receipt of submissions.

 

2.       That all Section 355 Committees be provided with copies of the draft Guidelines and asked to provide any submissions on the Guidelines by the end of the exhibition period.

 

3.       That the draft Section 355 Committee Guidelines be reported back to Council with any submissions received prior to adoption.

 

 

Attachments:

 

·       Draft Section 355 Committee Guidelines #1098905 [71 pages]............................................. Annexure 25

 

 

A copy of the existing Section 355 Committee Guidelines are available at www.byron.nsw.gov.au/section-355-committees


Report

 

A networking meeting with all Section 355 Committee members was held in July 2011.  At this meeting it was advised that the Section 355 Committee Guidelines were being redrafted to reflect up to date practices.  The Committee members also recognised areas in the Guidelines that needed updating such as:

 

·          Clarification on financial and GST reporting requirements;

·          Insurance clarification;

·          Health and Safety Guidelines;

·          General definitions to be updated where required;

·          Provision of templates for agendas, minutes, hire Agreement etc.

 

The Section 355 Committee Guidelines have been redrafted to reflect up to date practices and to provide the Section 355 Committees with templates to assist them with their management of Council’s facilities.

 

It has been recommended that the draft Guidelines be placed on exhibition for a period of 28 days and allowing a further 28 days for the receipt of submissions.  If any of the Committee members request a meeting with Council staff for clarification of any section of the guidelines, relevant staff will meet with members as required.

 

It is proposed the new Guidelines are to be adopted prior to disbanding all Section 355 Committees following September 2012 Council Election and are to be in operation for the commencement of the new Committees.

 

A workshop on the adopted Section 355 Committee Guidelines will be held with all new Section 355 Committee members after appointment by Council.

 

Financial Implications

 

Section 355 Committees are made up of community volunteers who manage Council facilities.  By resolution of Council some member’s positions are paid out of office expenses to assist them in carrying out their role on these Committees.  In all cases these payments in addition to minor building maintenance expenses are able to be funded from the income generated from the hall. 

 

Statutory and Policy Compliance Implications

 

Section 355 Management Committees can be formed to manage Council facilities on behalf of Council.

 

Local Government Act Section 355 states

 

Part 1 General

355   How does a council exercise its functions?

A function of a council may, subject to this Chapter, be exercised:

(a)      by the council by means of the councillors or employees, by its agents or contractors, by financial provision, by the provision of goods, equipment, services, amenities or facilities or by any other means, or

(b)     by a committee of the council, or

(c)     partly or jointly by the council and another person or persons, or

(d)     jointly by the council and another council or councils (including by means of a Voluntary Regional Organisation of Councils of which the councils concerned are members), or

(e)     by a delegate of the council (which may, for example, be a Voluntary Regional Organisation of Councils of which the council is a member).

 

 

 

Report No. 12.11.

Heritage House Bangalow Section 355 Committee – Amended fees and charges

Executive Manager:   Corporate Management

File No:                        ADM252000 #1183300

 

Principal Activity:

 

Corporate Management, Governance, Committee development

Summary:

 

Heritage House Bangalow Section 355 Committee have requested their fees and charges be amended anticipating increase in hiring’s after the completion of the deck extensions

 

Council considered this report at its Ordinary Meeting held on 15 December 2011 and it resolved to defer this report to allow staff to seek clarification from Heritage House with regard to the fees recommended.  Staff have contacted the Chairperson of Heritage House Bangalow Section 355 Committee to confirm the recommended fees as detailed in the report and below are correct.

 

 

RECOMMENDATION:

 

1.       That the fees and charges for the remainder of 2011/12 for Heritage House Bangalow be as follows:

 

Bangalow Heritage House

1187.1

Commercial

Community

Meeting Room or Verandah Only

(includes casual use of the kitchen for morning/afternoon tea (urn, fridge, crockery, cutlery etc)

 

 

 

 

Per hour

 

8.00

7.00

Half Day (4 hours) (Community only)

 

N/A

20.00

Per Day (8 hours) (Community only)

 

N/A

35.00

Grounds only per day (7am to 5pm)

 

200.00

100.00

Meeting Room, Verandah and Grounds

Per Hour

 

 

150.00

 

150.00

Use of Kitchen (per booking - flat rate)

 

250.00

250.00

Bond 

 

500.00

500.00

Key deposit

 

50.00

50.00

Please note: The hiring of Heritage House Bangalow is subject to the Hirer reaching a suitable agreement with Bangalow Historical Society Inc. who are the permanent, principal tenant.

 

2.       That in accordance with the Local Government Act 1993 Section 610(f) the proposed amendment to the fees and charges for Heritage House Bangalow be advertised for a period of 28 days to allow for public submissions and:

 

a)      that if any submissions are received on the proposed amendments to the fees and charges they be reported back to Council prior to adoption; or

b)      that in the event that no submissions are received on the proposed amendment to the fees and charges they be adopted after the close of the exhibition period.

 

3.       That the reimbursement amount for out of pocket expenses for Heritage House Bangalow be increased from $1,000 to $2,000.


 

Report

 

The Bangalow Historical Society have recently built an extension to the Heritage House in Bangalow which now has large covered deck area which can be hired out by the Section 355 Committee when not operating as the Tea Rooms managed by the Historical Society.

 

Council has received a letter from Heritage House Bangalow requesting Council’s Fees and Charges be amended in line with their Hire Agreement as detailed in the Ordinary meeting agenda of 15 December 2011 Annexure 42.

 

Council considered this report at its Ordinary Meeting held on 15 December 2011 and it resolved to defer this report to allow staff to seek clarification from Heritage House with regard to the fees recommended.  Staff have contacted the Chairperson of Heritage House Bangalow Section 355 Committee to confirm the recommended fees as detailed in the report were correct.  To clarify the fee for the use of the kitchen when hiring the whole centre for a function the following wording has been included:  “Use of Kitchen (per booking - flat rate) $250”.

 

          2011/12 adopted Fees and Charges:

Bangalow Heritage House

1187.1

Commercial

Community

Meeting Room / Verandah

(includes casual use of the kitchen for morning/afternoon tea (urn, fridge, crockery, cutlery etc)

 

 

 

 

 

 

 

Per hour

 

8.00

7.00

Half Day (4 hours)

 

N/A

20.00

Per Day (8 hours)

 

N/A

35.00

Grounds per day

 

200.00

100.00

Other arrangements

Meeting room, verandah, kitchen and grounds by negotiations

 

 

2,000 min

 

2,000 min

Major function such as a Wedding

Includes house, verandah, kitchen and grounds.  This includes 1 day either side of the event for preparation and restoration of the site and 1 day for the event.

 

 

3,000

 

 

3,000

Bond  $500

 

 

 

Key deposit

 

50.00

50.00

Please note: The hiring of Heritage House Bangalow is subject to the Hirer reaching

a suitable agreement with Bangalow Historical Society Inc. who are the permanent,

principal tenant.

 

Recommended changes to adopted Fees and Charges as stated in their Hire Agreement.

Bangalow Heritage House

1187.1

Commercial

Community

Meeting Room or Verandah Only

(includes casual use of the kitchen for morning/afternoon tea (urn, fridge, crockery, cutlery etc)

 

 

 

 

Per hour

 

8.00

7.00

Half Day (4 hours) (Community only)

 

N/A

20.00

Per Day (8 hours) (Community only)

 

N/A

35.00

Grounds only per day (7am to 5pm)

 

200.00

100.00

Meeting Room, Verandah and Grounds

Per Hour

 

 

 

150.00

 

 

150.00

Use of Kitchen (per booking - flat rate)

 

250.00

250.00

Bond 

 

500.00

500.00

Key deposit

 

50.00

50.00

Please note: The hiring of Heritage House Bangalow is subject to the Hirer
reaching a suitable agreement with Bangalow Historical Society Inc. who
are the permanent, principal tenant
.

 

No income has been received for the hire of the House since August 2011 as the extension was being built. The extension has now been completed and they have verbally also requested if their reimbursement amount for out of pocket expenses could be increased from $1,000 to $2,000.

 

Council staff are presently meeting with the Section 355 Committee to ensure correct processes are followed with regards to their income and expenditure in managing Heritage House in line with the Section 355 Committee Guidelines. 

 

Financial Implications

 

The proposed fees and charges as requested by the Committee are appropriate for the use of the facility.

 

The reimbursement amounts for Section 355 Committees ranges from $1,000 to $2,000, depending on the use of the facility.  In accordance with the extra use, which will generate extra income, for this facility it has been recommended the reimbursement amount be increased.

 

Statutory and Policy Compliance Implications

 

The Section 355 Community manages the Heritage House Bangalow under adopted Guidelines and adopted Section 377 delegations which can be found on Council’s web site at www.byron.nsw.gov.au/section-355-committees

 

Section 355  How does a council exercise its functions?

 

A function of a council may, subject to this Chapter, be exercised:

a)              by the council by means of the councillors or employees, by its agents or contractors, by financial provision, by the provision of goods, equipment, services, amenities or facilities or by any other means, or

b)              by a committee of the council, or

c)              partly or jointly by the council and another person or persons, or

d)              jointly by the council and another council or councils (including by means of a Voluntary Regional Organisation of Councils of which the councils concerned are members), or

e)              by a delegate of the council (which may, for example, be a Voluntary Regional Organisation of Councils of which the council is a member).

 

Advertising the amendment to the fees and charges are in accordance with Section 610F of Local Government Act 1993 which states:

 

(1)      A council must not determine the amount of a fee until it has given public notice of the fee in accordance with this section and has considered any submissions duly made to it during the period of public notice.

(2)      Public notice of the amount of a proposed fee must be given (in accordance with section 405) in the draft operational plan for the year in which the fee is to be made.

(3)      However, if, after the date on which the operational plan commences:

(a)   a new service is provided, or the nature or extent of an existing service is changed, or

(b)   the regulations in accordance with which the fee is determined are amended,

 the council must give public notice (in accordance with section 705) for at least 28 days of the fee proposed for the new or changed service or the fee determined in accordance with the amended regulations.

(4)      This section does not apply to a fee determined by a council for an application made in a filming proposal, if that fee is consistent with a scale or structure of fees set out in an applicable filming protocol.

 

 

 

Report No. 12.12.

Water, Waste and Sewer Advisory Committee membership

Executive Manager:   Corporate Management

File No:                        ADM250000 #1182823

 

Principal Activity:

 

Administration – Committee Coordination

Summary:

 

Council at its Ordinary Meeting held on 13 October 2011 adopted the Water, Waste and Sewer Advisory Committee minutes of 15 September 2011, which included resolution 11-826:

 

Committee Recommendation WW&S 4.1.1 Parts 2, 5 & 7

2.     That membership of the Advisory Committee be expanded through advertisement seeking two new community members with an interest in waste and recycling matters.

 

Staff subsequently advertised for the new community members and received 3 nominations.

 

 

RECOMMENDATION:

 

That Council consider nominations for two further community representatives for the Water, Waste and Sewer Advisory Committee.

 

 

Attachments:

 

·       Nominations received for the Water, Waste and Sewer Advisory Committee:

CONFIDENTIAL #1176065 [2 pages].............................................................................. Annexure 13(a)

CONFIDENTIAL #1175301 [2 pages].............................................................................. Annexure 13(b)

CONFIDENTIAL #1175536 [2 pages].............................................................................. Annexure 13(c)

 

Report

 

Council at its Ordinary Meeting held on 13 October 2011 considered a report on the Water, Waste and Sewer Advisory Committee meeting of 15 September 2011. One of the recommendations adopted by Council is resolution 11-826:

 

Committee Recommendation WW&S 4.1.1 Parts 2, 5 & 7

2.     That membership of the Advisory Committee be expanded through advertisement seeking two new community members with an interest in waste and recycling matters.

 

Staff subsequently advertised for the new community members and received three nominations.

 

In accordance with the resolution, Council can choose two new community members from the three nominations received.

 

Currently, the Water, Waste and Sewer Advisory Committee consists of:

 

a)      3 Councillor representatives; and

b)      3 community representatives.

 

Financial Implications

 

All community representatives on these advisory committees are volunteer positions.

 

Councillors appointed to advisory committees can claim travel expenses to and from each meeting in accordance with Council’s adopted Policy – Mayor and Councillors Payment of Expenses and Provision of Facilities – Clause 4 Travel Expenses.

 

Statutory and Policy Compliance Implications

 

Advisory Committees operate in accordance with their adopted Constitutions.

 

Further information on these advisory committees can be found on Council’s Webpage at www.byron.nsw.gov.au/committees#advisorycommittees.


 

 

 

Report No. 12.13.

PLANNING - Public submission on the exhibition of the Draft Air Space Policy

Executive Manager:   Corporate Management

File No:                        PLN106000 #1153177

 

Principal Activity:

 

Corporate Services

Summary:

 

Council resolved in relation to Strategic Planning Committee recommendation 7.1.1 at its Ordinary Meeting of 9 June 2011:

 

11-493  That Council receive advice on the result of the exhibition of draft airspace policy in that closed on 21 October 2010 and any advice required for fees and charges to be set, changed or modified

 

This report notes that no public submissions were received in regard to the draft airspace policy. However on the basis of advice in regard to relevant statutory provisions this report recommends amendments to the draft policy in order that regulatory control of airspace and leasing fees imposed accord with relevant statutory provisions.

 

 

NOTE TO COUNCILLORS:

 

In accordance with the provisions of S375A of the Local Government Act 1993, a Division is to be called whenever a motion for a planning decision is put to the meeting, for the purpose of recording voting on planning matters.  Pursuant to clause 2(a) under the heading Matters to be Included in Minutes of Council Meetings of Council's adopted Code of Meeting Practice (as amended) a Division will be deemed to have been called by the mover and seconder of all motions relating to this report.

 

 

RECOMMENDATION:

 

1.             That Council adopt the Air Space Policy.

 

2.             That leasing fees for air space development that provides for commercial floor area be imposed and calculated on the basis of a market valuation for the commercial use, in accordance with Council’s adopted Fees and Charges.

 

3.             That Council advise all premises owners that have existing and / or approved air space structures of the commencement of this Policy.

 

 

Attachments:

 

·       Draft Air Space Policy #1159070 [6 pages]..................................................................... Annexure 31(a)

·       CONFIDENTIAL Marsden advice on Draft Policy #1027114 [7 pages].............................. Annexure 31(b)

·       CONFIDENTIAL Marsden advice on Draft Policy #1031096 [5 pages]......... .....................Annexure 31(c)

 

Report

 

Summary:

 

              Council resolved in relation to Strategic Planning Committee recommendation 7.1.1 at its Ordinary Meeting of 9 June 2011:

 

11-493  That Council receive advice on the result of the exhibition of draft airspace policy in that closed on 21 October 2010 and any advice required for fees and charges to be set, changed or modified

 

This report notes that no public submissions were received in regard to the draft airspace policy. However on the basis of advice in regard to relevant statutory provisions this report recommends amendments to the draft policy in order that regulatory control of airspace and leasing fees imposed accord with relevant statutory provisions.

 

Background:

 

Council resolutions relating to airspace leasing policy date back to at least 2000. A draft Airspace Leasing Policy was prepared and placed on public exhibition in June 2002.

 

A revised draft policy was reported to Council’s Ordinary Meeting of 28 June 2005 at which meeting Council resolved (05-475) …..That Council abandons any further development on the Policy - Leasing of Airspace.

 

The matter of the leasing of airspace was revisited by Council at its Ordinary Meeting of 12 November 2009 in its consideration of DA 10.2008.742.1 for redevelopment of the Great Northern Hotel incorporating an above-footpath balcony and at which meeting it resolved as follows:

 

09-950: Resolved that pursuant to Section 80 of the Environmental Planning & Assessment Act 1979, Development Application No. 10.2008.742.1, for alterations and additions to the existing hotel including the replacement of the existing awning with a new awning/balcony, be granted consent subject to conditions listed in Annexure 16(b) (#902291).

 

09-951 Paragraph 1: Resolved that Council receive a further report on consent condition 49 regarding the lease value, terms and conditions for part of the public road reserve to be occupied by the proponent’s proposed balcony.

NB Condition 49 of DA 10.2008.742.1 provided that: A lease from Byron Shire Council of that part of the public road to be occupied by the balcony must be duly executed by all parties prior to issue of the Construction Certificate for Stage Two.

 

09-951 Paragraph 3: Resolved that any other air space usage in Byron Bay be reviewed for consistency with lease/licence arrangements.

 

Matters arising from paragraphs 1 and 3 of Council resolution 09-951 were reported to Council’s Ordinary Meeting of 13 May 2010 at which meeting Council resolved as follows:

 

10-364 Resolved:

 

1.       That Council undertake an audit of structures occupying the airspace over the public road reserve that have an approved use under the Environmental Planning and Assessment Act associated with commercial uses. 

 

2.       That the draft policy identified at #307324 be advertised for 28 days for public exhibition in relation to leasing of airspace #525455.

 

3.       That a register be established for leases and licenses over airspace.

 

4       That Council receive a report on the outcomes of the audit and draft policy and register for further consideration.

 

The draft airspace policy was publicly exhibited pursuant to Paragraph 2 of Council resolution 10-364 with the exhibition closing on 21 October 2010.

 

No public submissions were received in regard to the exhibited draft policy. However, legal advices received in late 2010 have provided relevant information in regard to the mechanisms available, and not available, to regulate and charge for the use of airspace.

 

              A Report in regard to Identifying cost saving/revenue within Environment Planning and Natural Resources Division was put to Council’s Strategic Planning Meeting of 26 May 2011.

 

              The Committee made recommendations to Council’s Ordinary Meeting of 9 June 2011 and Council resolved at this meeting as follows:

 

11-493 Resolved That Council receive advice on the result of the exhibition of draft airspace policy in that closed on 21 October 2010 and any advice required for fees and charges to be set, changed or modified.

 

Information:

 

The Exhibited Draft Policy

 

The exhibited draft policy provides for the following:

 

·                Requires a licence or lease in all instances where a structure, including verandas and awnings, occupies Council airspace

·                Recognises that the Roads Act provides that only the Director of the Department of Planning can approve leases of airspace over Council road reserves

·                Requires that rental be charged for usable space such as verandas and decks

·                Maximum lease/licence period of 3 years  

·                In exceptional circumstances a lease greater than 3 years can be allowed in which event a lease that can be registered is required and which in turn requires that a strata lot be created to which the lease applies

·                Maximum 10 years lease in any event

·                Provides considerations for the determination of a market valuation of appropriate rental fees

·                Provides impact assessment criteria for Council to consider when assessing applications for the construction of structures over public footpaths

 

Amended Draft Policy – Relevant Statutory Considerations

 

The proposed draft policy attached to this report as Annexure 31(a) incorporates a range of amendments that have been informed by legal advice received by Council in regard to the previously exhibited draft policy (Confidential Annexures 31(b) and 31(c). In determining the suitability of the provisions of the amended draft policy, the following matters have been taken into account.

 

·         Section 138 of the Roads Act permits a roads authority to approve the erection of a structure over a public road owned by the authority (NB Sections 125 – 127 of the Roads Act relate to Footway Restaurants).

 

·         Section 139 of the Roads Act permits a roads authority to impose such conditions as it thinks fit on an approval issued under Section 138.

 

·         Section 149 of the NSW Roads Act 1993 permits a road authority to grant a lease of air space above a public road owned by the authority subject to the consent of the Director of Planning being obtained.

 

·         Section 149 limits the maximum period of a lease to 99 years and does not otherwise restrict the terms of a lease.

 

·         The requirement that a leasing arrangement be entered into under Section 149 of the Roads Act can be made a condition of an approval under Section 138.

 

·         Section 149 does not confer on Council the right to grant a licence for air space with the consequence that Council does not have such a right.

 

·         A rental arrangement must be regarded as akin to a leasing arrangement therefore a rental arrangement would be subject to the same controls as a leasing arrangement.  If a rental, or cost, is to be imposed then a leasing arrangement is required.

 

·         A development consent granted under the Environmental Planning and Assessment Act for a structure over a public road does not, of itself, entitle the applicant to occupy the subject air space. Such entitlement derives from the application of the Roads Act.

 

·         The Real Property Act 1900 requires that a lease for any period exceeding 3 years must be registered. This entails that the lease be recorded on the land title.

 

·         Sections 23F and 23G of the Conveyancing Act 1919 require that a lease for more than 5 years including any option of renewal must be for an area defined as a lot in a current registered plan.  That is, if the proposed lease is to be longer than 5 years, a strata subdivision of the road reserve would be required to create a lot in a strata plan for the purpose of the lease.

 

·         Strata subdivision of a road reserve is permissible under s259 of the Roads Act.

 

·         Unless an approval under Section 138 of the Roads Act has been granted, the occupant of airspace and/or the owner of the occupying structure has no lawful right to so occupy the airspace.

 

·         In the event that no Section 138 approval has been granted, Council may issue an order under Section 107 of the Roads Act to remove the structure. Such an order is not appellable. 

 

If Council wishes to discuss the confidential legal advice, it is recommended that Council resolve to move into confidential session. If that is the case, the motion could be along the lines:

         

1.       That pursuant to Section 10A(2)(g) of the Local Government Act, 1993, Council resolve into Confidential Session to discuss confidential Annexures 31(b) and 31(c).

 

2.       That the reasons for closing the meeting to the public to further consider this item be that it contains advice concerning litigation, or advice that would otherwise be privileged from production in legal proceedings on the ground of legal professional privilege.

 

3.       That on balance it is considered that receipt and discussion of the matter in open Council would be contrary to the public interest, as it could compromise the position of Council in current or future litigation and present a risk to public funds.

 

Amended draft policy – other considerations:

 

·                Proposed air space structures are to be assessed in the context of the entire development of which they are an element, of the existing streetscape and of the use of the ground level under the structure.

 

·                All air space structures are to have an approval under Section 138 of the Roads Act.

 

·                Section 138 approvals are to incorporate conditions that relate to the structural safety and appearance of the structure.

 

·                Where an air space structure incorporates commercial floor area, the required Section 138 approval shall include a condition that requires that a leasing arrangement under Section 149 of the Roads Act be entered into.

 

·                Fees to be imposed under any such leasing agreement are to be determined by a market valuation of the commercial floor area.  

 

·                Retrospective approvals and leasing arrangements for existing structures are not required, however all existing structures without approval will be required to obtain an approval under Section 138 of the Roads Act with appropriate conditions.

 

Financial Implications

 

Costs were involved in obtaining legal advice, however income will accrue when appropriate commercial leasing rates are applied to air space structures.

 

Fees for both new leases and licences of Council have already been adopted on page 24 in Council’s Fees and Charges 2011/12 (Res No. 11-546 – 30 June 2011).

 

Statutory and Policy Compliance Implications

 

Council should not retrospectively impose a leasing arrangement and fee for premises that have an existing and/or approved air space structure.

 

It is intended that from the date of the adoption of this Air Space Policy, leases will be required for the commercial use of airspace.

 

 

 

Report No. 12.14.

Request for reduction in fees - Byron Artisan Market

Executive Manager:   Corporate Management

File No:                        BEN400000 #1187488

 

Principal Activity:

 

Property and Contracts

Summary:

 

Council resolved to enter into a Temporary Licence with Byron Bay Community Association Inc for the Artisan Market to be held on Railway Park each Saturday evening from 1 October 2011 to 7 April 2012.

 

The Byron Bay Community Association Inc have requested a reduction in their fees payable to Council for the market.  This report recommends that Council determine whether it wishes to reduce its adopted fees and charges for temporary markets for the Artisan Market.

 

 

RECOMMENDATION:

 

That Council determine its position in relation to a reduction in its adopted fees and charges to the Byron Bay Community Association Inc for the Temporary Market Licence Fees for the Artisan Market.

 

 

Attachments:

 

·       Letter from BBCA dated 3 October 2011 #1149813 [2 pages]........................................... Annexure 34(a)

·       Letter to BBCA dated 31 October 2011 #1158501 [2 pages]............................................. Annexure 34(b)

·       Email from BBCA dated 15 December 2011 #1178530 [1 page]....................................... Annexure 34(c)

·       Letter to BBCA dated 17 January 2011 #1187192 [2 pages]............................................. Annexure 34(d)

 

Report

 

After considering a Notice of Motion made to the Strategic Planning Committee Meeting of 22 September 2011 – “4.2 Approval of Byron Artisan Market” (www.byron.nsw.gov.au/meetings/2011) the Strategic Planning Committee resolved under delegation:

 

11-743

 

“1.     That Council, being aware of legal advice received on 20 September 2011 (#1143876) issue the Byron Bay Community Association (BBCA) a temporary licence to operate the Artisan Market at Railway Park, Byron Bay from 1 October 2011 until 7 April 2012, as per application received.

 

2.       That the General Manager issue the licence as per the regulating code 4.2. Development Consent, in the existing Markets within Byron Shire Policy.

 

3.       That the licence is considered temporary as a term of a standard licence is three consecutive years, as stated within regulating code 4.3. Licence, in the existing Markets within Byron Shire Policy.

 

4.       That Council note that support for the artisan market conforms with Council’s cultural policy, creative industry strategy, draft economic strategy and community safety plan as support and recognition of the creative community and public safety.

 

5.       That Council request a report on the operations of markets over the last two years from the BBCA.”

 

Management wrote to the BBCA requesting a report on the operations of the Artisan Market over the last two years and enclosing their temporary Licence for execution and advising of Council’s adopted fees for temporary markets.

 

On 3 October 2011, the BBCA wrote to Council requesting a review of the fee structure for this market.  A copy of that correspondence is Annexure 34(a).  The fees for the Artisan Market have increased from a “community” lease/licence fee based on nominal Crown Rent in 2010 ($400 per annum) to Council’s adopted fees and charges for temporary markets, being $320.00 per market.

 

The setting of temporary market fees have been the subject of previous reports to Council.  A brief history of the setting of the temporary market licence fees is as follows:

 

“At its Committee Meeting of 17 November 2009 the MCI Committee considered a report “Policy 5.51 “Markets on Council Owned and Controlled Land”.  The MCI Committee made recommendations to Council’s Ordinary Meeting of 17 December 2009 (MCI 5.6.1).

 

That report contained the recommendations made by the Markets and Creative Industries (MCI) Committee to Council after consultation and meetings with stakeholders including Market Management and Stallholder Associations as part of the further review undertaken in accordance with Part 1 of Resolution 08-100.  Council following consideration of the MCI Committee Recommendations resolved, in part, as follows:

 

09-1140

 

2.       That Council formulate a process to determine the fees and charges for temporary market licences.

 

After considering a report tabled to the Ordinary Meeting of 22 April 2010 –

“12.3 Policy 5.51 Markets on Council owned and controlled land” (www.byron.nsw.gov.au/meetings/2010) Council resolved, in part, as follows:

 

10-271

 

1.       “That Council write to the individuals and organisations that provided feedback during the exhibition period of the Policy and thank them for their contribution.

 

2.       That Council adopt the fees and charges as set below for a Temporary Market Licence and that the adopted fees and charges be placed on public exhibition for a minimum period of 28 days.

 

Licence Fees - Temporary Market

Application Fee                                                                $150.00

 

Fee Per day                                                                     $275.00

(evidence of incorporation

as a non-profit association required)

 

3.       That in the event that no submissions are received on the Temporary Market Licence fee after the exhibition period, the fees be adopted and incorporated into Council’s Adopted Fees and Charges for 2009/10.”

 

Since that time, the adopted fees and charges for temporary market licences have increased to $170.00 Application fee and $320.00 Fee per day.

 

Management wrote to the BBCA on 31 October 2011 detailing the history of the setting of the temporary market licence fee and advising that Council staff do not have delegations to waive Council’s adopted fees and charges.  Management advised the BBCA that should they wish a report to the elected Council for their consideration of a reduction in fees be prepared, could they please advise in writing.  A copy of that correspondence is Annexure 34(b).

 

On 15 December 2011, the BBCA advised via email that they did wish a report to be prepared for Council’s consideration in relation to their request for a reduction in the Artisan Market fees.  A copy of that correspondence is Annexure 34(c).

 

On 20 December 2011, Management wrote to the BBCA advising that the report would be prepared for Council’s consideration.  That correspondence also pointed out that the Artisan Market Licence was not valid until such time as the licence document was executed and returned, together with any outstanding fees.  The BBCA was also advised that the report would be considered by Council in early 2012, and if at that time, Council resolved to reduce the fees payable, a credit and refund would be applied.  A copy of that correspondence in Annexure 34(d).

 

On 2 January 2012, the BBCA returned signed Licence Agreements.  Clause 4.2 of the Licence Agreement requiring payments of fees of $320.00 per market in accordance with Council’s adopted fees and charges had been crossed out and initialled.

 

Management wrote to the BBCA on 17 January 2012 explaining again that Council staff do not have delegated authority to waive Council’s adopted fees and charges and that the original Licence Agreement offered was required to be signed and returned, and all outstanding fees due paid within seven (7) days.  It was explained that the BBCA risked being issued an Order to cease unlicenced activities on the Park unless these actions were undertaken.  It was further explained that the report to Council detailing their request for a reduction in fees would be tabled at the Ordinary Meeting of 9 February 2012 and that if the elected Council resolved to reduce their fees, a credit and refund would be applied.

As Management and staff do not have delegated authority to waive Council’s adopted fees and charges, this report seeks Council’s determination on whether they wish to reduce the fees payable by BBCA for the temporary market licence fees for the Artisan Market.

 

Should Council determine to reduce the fees, it could do so by resolving to allocate a Section 356 Donation as Council’s contribution to the Byron Bay Community Association Inc., for the whole, or part of, the temporary market licence fee for the Artisan Market – such as:

 

          “That Council resolve the allocation by resolution of a Section 356 Donation to the Byron Bay Community Association Inc as Council’s contribution to the temporary market licence fee for the Artisan Market.”

 

Financial Implications

 

Fees for Temporary Markets were set by Council by resolution 10-271.  The fees are an Application fee of $170.00 and Temporary Market Licence fee of $320.00 per market.  The Artisan Market runs every Saturday evening from October to April.  The BBCA is invoiced monthly for the market, being $1,600 or $1,280, depending on how many markets are held in the month.

 

There is currently $4,480.00 in fees that have been invoiced and are unpaid.  The total amount due for the whole of the term of the temporary market licence is $8,960.00.  Prior to Council adopting the Fees and Charges for Temporary Markets, the BBCA was charged fees consistent with the minimum Crown Rental which is currently $432.00.

 

If Council determines to reduce the fees by allocation of a Section 356 Donation, there may be a need for consideration of that donation at the next quarterly review.

 

Statutory and Policy Compliance Implications

 

Section 356 of the Local Government Act states:-

 

356    Can a council financially assist others?

(1)     A council may, in accordance with a resolution of the council, contribute money or otherwise grant financial assistance to persons for the purpose of exercising its functions.

 

(2)     A proposed recipient who acts for private gain is not ineligible to be granted financial assistance but must not receive any benefit under this section until at least 28 days’ public notice of the council’s proposal to pass the necessary resolution has been given.

 

(3)     However, public notice is not required if:

(a)   the financial assistance is part of a specific program, and

(b)   the program’s details have been included in the council’s draft management plan for the year in which the financial assistance is proposed to be given, and

(c)   the program’s proposed budget for that year does not exceed 5 per cent of the council’s proposed income from the ordinary rates levied for that year, and

(d)   the program applies uniformly to all persons within the council’s area or to a significant group of persons within the area.

 

(4)     Public notice is also not required if the financial assistance is part of a program of graffiti removal work.

 

 

 

Report No. 12.15.

2011-2012 Financial Assistance Grant

Executive Manager:   Corporate Management

File No:                        FIN100500 #1170751

 

Principal Activity:

 

Financial Services

Summary:

 

Council has been advised of its entitlement regarding the 2011-2012 Financial Assistance Grant and details on how the grant has been calculated.  The NSW Local Government Grants Commission has asked that the calculation details of the Financial Assistance Grant be tabled at a Council Meeting.

 

This report tables the calculations from the NSW Local Government Grants Commission for the information of Council.

 

 

RECOMMENDATION:

 

That the report be received and noted.

 

 

Attachments:

 

·       Details of 2011-2012 Financial Assistance Grant Calculations #1158572 [30 pages]........... Annexure 20(a)

·       Details of 2011-2012 Financial Assistance Grant Entitlement #1136177 [14 pages]............ Annexure 20(b)

·       Copy of Council submission to the 2012/2013 Financial Assistance Grant
#1170413 [3 pages]....................................................................................................... Annexure 20(c)

 

Report

 

The NSW Local Government Grants Commission has advised Council of its entitlement to the Financial Assistance Grant for 2011-2012 and the detailed calculations surrounding Council’s grant allocation.  

 

Details of the monetary value of Council’s 2011-2012 Financial Assistance Grant was advised to Council on 1 September 2011 and is detailed at Annexure 20(b).  In summary Council 2011-2012 Financial Assistance Grant is detailed in the table below:

 

Grant Component

Value $

General Purpose

1,385,341

Roads Component

1,085,179

CPI Adjustment from 2010-2011 General

4,408

CPI Adjustment from 2010-2011 Roads

3,293

Total Financial Assistance Grant 2011-2012

2,478,221

 

 

 

The total General Purpose component of the Financial Assistance Grant for 2011-2012 is $1,389,749 and the total Roads component is $1,088,472.

 

For the last two financial years the Commonwealth has paid an instalment of the Financial Assistance Grant in advance.  In relation to the grant for 2011-2012, Council received a total advance payment of $628,745 in June 2011.  Grant payments received during the course of the 2011-2012 financial year will be reduced by the amount of the advance payment.

 

As indicated in Annexure 20(b), the Financial Assistance Grant to Council is a general purpose grant.  That is whilst it has defined components that make up the grant ie General and Roads, there are no conditions attached to the grant in terms of how Council expends it.  Council recognises this grant in the General Purpose Revenues Program along with rate revenue which by virtue of the budget is distributed to other programs of Council.

 

Outlined in Annexure 20(a) are the detailed calculation factors used by the NSW Local Government Grants Commission to calculate the Financial Assistance Grant for Council for 2011-2012.  This information was received by Council on 28 October 2011.  The Local Government Grants Commission has asked that this information be tabled at a Council Meeting and as such this is the reason for this report.

 

Council is able to provide a submission to the NSW Local Government Grants Commission on any of the factors utilised to calculate its grant entitlement.  Submissions for the 2012/2013 Financial Assistance Grant closed on 30 November 2011 and are optional. Council did provide a submission and the submission is detailed at Annexure 20(c). The theme of the submission related to the discount applied to the Grant by way of the revenue allowance which is related to land values in the Council area, the cost of road maintenance and the impact of Tourism and the relevance of the Financial Assistance Grant received by Byron Shire Council in comparison to neighbouring councils.

 

Financial Implications

 

There are no financial implications associated with this report as it is informing Council of its Financial Assistance Grant entitlement for 2011-2012 and how it was calculated.

 

Statutory and Policy Compliance Implications

 

Funding of the Financial Assistance Grant is provided by the Commonwealth Government via the NSW Local Government Grants Commission.  The NSW Local Government Grants Commission determines the distribution of the Financial Assistance Grant to each Council in NSW from the pool of funds allocated to the State of NSW by the Commonwealth Government.  Each State in Australia is required to have a Local Government Grants Commission to determine distributions to Councils in their respective State.

 

The Financial Assistance Grant is governed by the Local Government (Financial Assistance) Act 1995 Cth.

 

 

 

 

Report No. 12.16.

Council Holiday Parks Financial Performance 2010/2011

Executive Manager:   Corporate Management

File No:                        BEN200000 #1183987

 

Principal Activity:

 

Financial Services

Summary:

 

Council adopted the Annual Financial Statements for the year ended 30 June 2011 at its Ordinary Meeting held on 20 October 2011 through resolution 11-838

 

Council as part of its consideration of the Annual Financial Statements also dealt with the Special Purpose Financial Reports, which include specific reports on Council’s declared business activities such as the Council’s Holiday Parks. 

 

During its consideration of the Special Purpose Financial Reports, Council requested a further report be provided on Council’s Holiday Parks providing detail on the individual Holiday Parks, given they are reported on an aggregated basis in the Special Purpose Financial Reports. 

 

This report provides this information.

 

 

RECOMMENDATION:

 

That the report be received and noted.

 

 

Attachments:

 

·       Byron Shire Council Holiday Parks Financial Performance 2010/2011 #1183819 [2 pages]..... Annexure 17

 

Report

 

Council adopted the Annual Financial Statements for the year ended 30 June 2011 at its Ordinary Meeting held on 20 October 2011 through resolution 11-838

 

Council as part of its consideration of the Annual Financial Statements also dealt with the Special Purpose Financial Reports, which include specific reports on Council’s declared business activities such as the Council’s Holiday Parks. 

 

During its consideration of the Special Purpose Financial Reports, Council requested a further report be provided on Council’s Holiday Parks providing detail on the individual Holiday Parks, given they are reported on an aggregated basis in the Special Purpose Financial Reports. 

 

This report provides this information.

 

As outlined in Council’s 2011-2014 Management Plan and Budget Estimates, Council operates a budget program containing its two Holiday Parks (First Sun and Suffolk Beachfront) on a combined basis.  For the purposes of National Competition Policy Reporting in the Annual Special Purpose Financial Reports, Council also reports the financial performance of the two Holiday Parks on a combined or aggregated basis, as Council has defined its Holiday Parks as a declared business operation.

 

Council, although it reports on an aggregated basis, does keep separate accounting records for the operating revenue, operational expenditure and capital expenditure for each of the two Holiday Parks ,and as such a reconciliation of the 2010/2011 financial performance of First Sun Holiday Park and Suffolk Beachfront Holiday Park has been prepared and is provided at Annexure 17. 

 

There are some expenditures that Council currently does not split between the Holiday Parks but applies on a program basis. These relate to depreciation of assets, support costs and dividend payments to Council, which are disclosed under the column ‘Other Program’ in Annexure 17. 

 

Aside from these the following table summarises the financial results derived during the 2010/2011 financial year for each Holiday Park.

 

 

First Sun $

Suffolk Beachfront $

Other Program $

Overall Totals $

 

 

 

 

 

Operating Revenue

2,366,277

670,895

 

3,037,172

Operating Expenditure

1,172,572

530,427

 

1,702,999

Gross Operating Result before Other Program Costs

1,183,705

140,468

 

1,324,173

 

 

 

 

 

Other Program Costs

 

 

 

 

Depreciation

 

 

301,733

301,733

Support Services

 

 

80,200

80,200

Governance and Dividend

 

 

734,700

734,700

 

 

 

 

 

Total Operating Result

1,183,705

140,468

(1,116,632)

217,540

 

As the above table indicates in gross terms both First Sun Holiday Park and Suffolk Beachfront Holiday Park were profitable for the 2010/2011 financial year, were able to fund the depreciation of their respective assets overall and provided a contribution to the General Fund of Council amounting to $814,900.

 

In addition to the operational results above, Council undertook $199,510 in capital works at First Sun Holiday Park and $62,664 in capital works at Suffolk Beachfront Holiday Park.  A total of $313,788 in loan principal and interest was also repaid on outstanding Holiday Park loan borrowings during 2010/2011.

 

As at 30 June 2011, Council retains a reserve for the Holiday Parks with a closing balance of $190,615. The reserve is a combine reserve for both Parks and does not contained separate balances for each Park. Detailed movements within this reserve during the 2010/2011 financial year are also contained at Annexure 17.

 

If comparison is made to the 2009/2010 financial year, the following financial results were achieved for each Park:

 

Operating Revenue

 

Year

First Sun

Suffolk Beachfront

2010/2011 - $

2,366,277

670,895

2009/2010 - $

2,194,511

612,790

Change - $

+171,766

58,105

Change - %

+7.8%

+9.5%

 

Operating Expenditure (excluding Other Program Costs)

 

Year

First Sun

Suffolk Beachfront

2010/2011 - $

1,172,572

530,427

2009/2010 - $

1,052,145

535,980

Change - $

+120,427

-5,553

Change - %

+11.4%

-1.04%

 

Individual Holiday Park Profitability (excluding Other Program Costs)

 

Year

First Sun

Suffolk Beachfront

2010/2011 - $

1,183,705

140,468

2009/2010 - $

1,142,366

76,810

Change - $

+41,339

+63,658

Change - %

+3.6%

+82.8%

 

The financial results indicated in this report are different to those identified in the published Annual Special Purpose Financial Reports forming part of the Annual Financial Statements for 2010/2011.  This is due to the exclusion of ‘notional’ costs that Council has to apply for the purposes of National Competition Policy in the Special Purpose Financial Reports but which are not physically incurred. 

 

These costs include debt guarantee fees, provision for income tax on profits and land tax.  Council is exempt from these costs but they are included for the purposes of National Competition Policy to demonstrate financial results, as if they did apply, so to compare Council’s results to results that may be derived by the private sector, which is not exempt from those costs.

 

It is pleasing that in 2010/2011 that the Council’s Holiday Parks demonstrated a positive financial performance for each Park when individually compared to the financial results of 2009/2010.

 

Financial Implications

 

None associated with this report.

 

Statutory and Policy Compliance Implications

 

Council is required to prepare Special Purpose Financial Reports each financial year in accordance with the Local Government Code of Accounting Practice and Financial Reporting for its declared business operations.  Council is also required to financially report and operate its declared business activities in accordance with the principles of National Competition Policy.

 

 

 

Report No. 12.17.

Investments –November and December 2011

Executive Manager:   Corporate Management

File No:                        FIN252000 #1171314

 

Principal Activity:

 

Financial Services

Summary:

This report includes a list of investments as at 30 November and 31 December 2011.

 

 

RECOMMENDATION:

 

That Council receive and note the record of investments for the month of November and December 2011.

 

 

Attachments:

 

·       Investment Valuations and Graphs November 2011 #1171315 [2 pages]........................... Annexure 21(a)

·       Investment Valuations and Graphs December 2011 #1184124 [2 pages]........................... Annexure 21(b)

·       Denison Investment Report November 2011 #1176383 [11 pages].................................... Annexure 21(c)

 

Report

 

Council has continued to maintain a diversified portfolio of investments. The average 90 day bank bill rate for the months of November and December was 4.57%.  Council’s performance for the months of November and December is a weighted average of 4.66%.  This performance is slightly higher than the benchmark for the first time in many months.  This is largely due to the active ongoing management of the investment portfolio, maximising investment returns through secure term deposits.  The maturity of the Prelude CDO in December also had an effect on Council’s return as it was earning 0% interest.  This CDO repaid principal of $1,000,000 due on 30 December 2011 with payment in full received on 5 January 2012.  This leaves Council exposed to one CDO worth $1,000,000 that matures in March 2012.  This CDO is linked to commodity prices and not corporates.  Council’s investment portfolio should continue to out-perform the benchmark as the capital protected investments earning 0% interest begin to mature or are able to be switched favourably.  There are still a number of Council’s capital protected investments being partially and fully allocated to an underlying zero coupon bond.  This is part of the “Capital Protection Mechanism” and coupons will not be paid if any allocation is made to this bond.

 

The current value of an investment compared to the principal value (face value or original purchase price) provides an indication of the performance of the investment without reference to the coupon (interest) rate. The current value represents the value received if an investment was sold or traded in the current market, in addition to the interest received.

 

For the months of November and December, the current value of investments has remained lower than the principal amount.  The table below shows a slight decrease in the unrealised loss for Council from October to December 2011.

 

Movement in Principal and Current Market Valuations

 

Month

Principal

Current Value (at end of month)

Unrealised Gain/(Loss)

OCTOBER

62,633,100.55

60,495,830.52

(2,137,270.03)

NOVEMBER

63,822,661.81

61,942,903.83

(1,879,757.98)

DECEMBER

60,336,462.62

58,505,039.56

(1,831,423.06)

 

This unrealised loss is a consequence of the lingering effects of the Global Financial Crisis.  Some of Council’s investments are linked to the Credit and Equity Markets which have been adversely affected and are yet to recover.  A breakdown of this can be seen in the table below.  The figures are for December 2011.

 

Dissection of Council Investment Portfolio as at 31 December 2011

 

Principal ($)

Investment Linked to:-

Current Value

Unrealised Gain/(Loss)

37,424,300.00

TERM DEPOSITS

37,424,300.00

0

1,612,162.62

BUSINESS ONLINE SAVER

1,612,162.62

0

3,500,000.00

MANAGED FUNDS

3,083,500.00

(416,500.00)

8,000,000.00

CREDIT

7,656,496.94

(343,503.06)

9,800,000.00

EQUITY

8,728,580.00

(1,071,420.00)

60,336,462.62

 

58,505,039.56

(1,831,423.06)

 

Council uses a diversified mix of investments to achieve short, medium and long-term results. Council’s historical strategy is to use credit/equity markets for exposure to long term growth. It should be noted that Council’s exposure to credit/equity products is capital protected when held to maturity, which ensures no matter what the market value of the product is at maturity, Council is insured against any capital loss.  The investment strategy associated with long term growth is now prohibited under the current Ministerial Investment Order utilising credit/equity markets to seek investment products.  However, the ‘grandfathering’ provisions of the Ministerial Investment Order provides Council can retain investments now prohibited until they mature.  Council is also looking continually at ‘switch’ opportunities for these investments in conjunction with its independent investment advisors.  Any ‘switch’ opportunities undertaken are reported to Council in the investment report relating to the month the ‘switch’ occurred.  Notwithstanding the current valuations of credit/equity investments, these products will trend toward their full principal value as they approach maturity.

 

During the month of November, Council wound up its exposure with Local Government Financial Services (LGFS).  This was due to the revised Ministerial Investment Order and the removal of LGFS as an authorised investment under that order.  LGFS concluded that the Fixed Performance Cash Fund (which Council held) should cease providing deposit taking services and repay all investments on the 29 November 2011.  Council invested $1,500,000 in the LGFS Fixed Performance Cash Fund in March 2008 which has grown through distributions to $1,834,684.62 at 29 November 2011.  This provided a return of approximately 6.09% per annum over the life of the investment.  The redemption was subsequently re-invested in term deposits purchased on 30th November.

 

Investments held as at 30 November 2011

 

Date

Principal ($)

Description

CP*

Rating

M’ty

Type

Rate

Current Value

15/11/05

1,000,000

PRELUDE EUROPE LTD

N

B

12/11

CR

0.00%*

959,200.00

26/3/07

1,000,000

CARGO II

N

AAA

03/12

CR

6.42%

916,600.00

24/7/07

1,000,000

AVERON II

CP

AAA

07/14

CR

0.00%*

830,000.00

17/1/08

1,000,000

ANZ SUB DEBT

N

AA-

01/13

CR

5.96%

995,782.02

30/1/08

1,000,000

SELECT ACCESS INVESTMENTS

CP

AA

11/12

CR

5.62%

951,400.00

22/4/08

2,000,000

ANZ TRANSFERABLE DEPOSIT

N

AA

04/13

CR

6.00%

2,016,980.00

14/11/08

2,000,000

ANZ TRANSFERABLE DEPOSIT

N

AA

12/12

CR

5.16%

1,993,080.00

16/12/08

2,000,000

CBA SENIOR TCD

N

AA

12/14

CR

6.58%

2,001,380.00

26/9/05

1,500,000

EMU NOTES

CP

AAA-

10/15

MFD

0.00%*

1,272,900

29/6/06

2,000,000

ALL SEASONS NOTE

CP

AA+

08/14

MFD

0.00%*

1,776,400.00

22/6/06

1,000,000

HIGH INCOME NOTES

CP

A+

06/13

E

0.00%*

904,900.00

5/9/06

800,000

MGD GLOBAL PROPERTY

CP

A+

09/12

E

0.00%*

770,720.00

22/11/06

1,000,000

LIQUIDITY

CP

A+

10/12

E

0.00%*

963,100.00

30/3/07

1,000,000

INFRASTRUCTURE AND UTILITIES NOTE

CP

A+

03/14

E

0.00%*

861,100.00

28/9/07

1,000,000

TRI-SECTOR LINKED NOTE

CP

A+

09/14

E

0.00%*

832,100.00

5/11/07

1,000,000

ELN 2

CP

AA

11/12

E

3.00%

986,100.00

28/11/07

3,000,000

CLIENT MANAGED NOTE

CP

A+

11/14

E

0.00%*

2,472,600.00

20/12/07

1,000,000

DANDELION NOTE

CP

AA

12/12

E

0.00%*

915,900.00

25/8/11

1,000,000

HERITAGE BUILDING SOCIETY

Y

NR

02/12

TD

6.00%

1,000,000.00

6/9/11

2,000,000

SUNCORP

P

A

12/11

TD

5.89%

2,000,000.00

27/7/11

2,000,000

CREDIT UNION AUSTRALIA

P

NR

01/12

TD

5.94%

2,000,000.00

29/9/08

2,000,000

WESTPAC BANK

N

AA

09/13

TD

8.00%

2,000,000.00

16/12/08

1,000,000

WESTPAC BANK

N

AA

12/13

TD

6.00%

1,000,000.00

28/9/09

785,000

INVESTEC BANK

Y

BBB+

01/14

TD

8.02%

785,000.00

2/10/09

1,734,800

ELDERS RURAL BANK

N

BBB

07/12

TD

6.93%

1,734,800.00

30/9/11

918,500

BANK OF CYPRUS

Y

NR

01/12

TD

6.00%

918,500.00

14/9/11

1,000,000

CREDIT UNION AUSTRALIA

N

NR

12/11

TD

5.83%

1,000,000.00

17/6/10

786,000

SUNCORP

N

A

06/14

TD

7.30%

786,000.00

29/4/11

2,000,000

COMMUNITY CPS

P

NR

01/12

TD

5.72%

2,000,000.00

29/8/11

1,000,000

ME BANK

Y

BBB

01/12

TD

5.90%

1,000,000.00

29/811

1,000,000

NEWCASTLE PERMANENT

Y

NR

01/12

TD

5.80%

1,000,000.00

7/9/11

2,000,000

SOUTHERN CROSS CR UNION

P

NR

12/11

TD

5.75%

2,000,000.00

12/5/11

1,000,000

INVESTEC BANK

N

BBB+

05/14

TD

7.48%

1,000,000.00

31/5/11

2,000,000

ING BANK (AUSTRALIA)

P

A1

03/12

TD

5.79%

2,000,000.00

28/9/11

4,200,000

WESTPAC BANK

N

AA

01/12

TD

5.85%

4,200,000.00

27/7/11

1,000,000

RABO BANK

P

AAA

5/12

TD

6.30%

1,000,000.00

8/8/11

1,000,000

RABO BANK

N

AAA

8/13

TD

6.50%

1,000,000.00

25/8/11

1,000,000

GREATER BUILDING SOCIETY

Y

NR

2/12

TD

6.05%

1,000,000.00

28/11/11

1,000,000

WIDE BAY LTD

Y

NR

04/12

TD

5.95%

1,000,000.00

28/11/11

1,000,000

ST GEORGE BANK

Y

AA-

02/12

TD

5.80%

1,000,000.00

30/11/11

1,000,000

ING BANK (AUSTRALIA)

Y

A1

01/12

TD

5.81%

1,000,000.00

30/11/11

1,000,000

ST GEORGE BANK

Y

AA-

02/12

TD

5.80%

1,000,000.00

30/11/11

2,000,000

NATIONAL AUSTRALIA BANK

Y

AA-

03/12

TD

5.99%

2,000,000.00

N/A

4,098,362

CBA BUSINESS ONLINE SAVER

N

A

N/A

CALL

5.00%

4,098,361.81

Total

63,822,662

 

 

 

 

AVG

4.64%

61,942,903.83

 

Investments held as at 31 December 2011

 

Date

Principal ($)

Description

CP*

Rating

M’ty

Type

Rate

Current Value

26/3/07

1,000,000

CARGO II

N

AAA

03/12

CR

6.42%

916,600.00

24/7/07

1,000,000

AVERON II

CP

AAA

07/14

CR

0.00%*

792,100.00

17/1/08

1,000,000

ANZ SUB DEBT

N

AA-

01/13

CR

5.96%

994,592.72

30/1/08

1,000,000

SELECT ACCESS INVESTMENTS

CP

AA

11/12

CR

5.62%

944,570.00

22/4/08

2,000,000

ANZ TRANSFERABLE DEPOSIT

N

AA

04/13

CR

6.00%

2,015,994.22

14/11/08

2,000,000

ANZ TRANSFERABLE DEPOSIT

N

AA

12/12

CR

5.16%

1,992,640.00

26/9/05

1,500,000

EMU NOTES

CP

AAA-

10/15

MFD

0.00%*

1,272,900.00

29/6/06

2,000,000

ALL SEASONS NOTE

CP

AA+

08/14

MFD

0.00%*

1,810,600.00

22/6/06

1,000,000

HIGH INCOME NOTES

CP

A+

06/13

E

0.00%*

907,300.00

5/9/06

800,000

MGD GLOBAL PROPERTY

CP

A+

09/12

E

0.00%*

773,280.00

22/11/06

1,000,000

LIQUIDITY

CP

A+

10/12

E

0.00%*

965,500.00

30/3/07

1,000,000

INFRASTRUCTURE AND UTILITIES NOTE

CP

A+

03/14

E

0.00%*

863,600.00

28/9/07

1,000,000

TRI-SECTOR LINKED NOTE

CP

A+

09/14

E

0.00%*

833,500.00

5/11/07

1,000,000

ELN 2

CP

AA

11/12

E

3.00%

984,500.00

28/11/07

3,000,000

CLIENT MANAGED NOTE

CP

A+

11/14

E

0.00%*

2,483,100.00

20/12/07

1,000,000

DANDELION NOTE

CP

AA

12/12

E

0.00%*

917,800.00

25/8/11

1,000,000

HERITAGE BUILDING SOCIETY

Y

NR

02/12

TD

6.00%

1,000,000.00

6/9/11

2,000,000

SUNCORP

P

A

03/12

TD

5.88%

2,000,000.00

27/7/11

2,000,000

CREDIT UNION AUSTRALIA

P

NR

01/12

TD

5.94%

2,000,000.00

29/9/08

2,000,000

WESTPAC BANK

N

AA

09/13

TD

8.00%

2,000,000.00

16/12/08

1,000,000

WESTPAC BANK

N

AA

12/13

TD

6.00%

1,000,000.00

28/9/09

785,000

INVESTEC BANK

Y

BBB+

01/14

TD

8.02%

785,000.00

2/10/09

1,734,800

ELDERS RURAL BANK

N

BBB

07/12

TD

6.93%

1,734,800.00

30/9/11

918,500

BANK OF CYPRUS

Y

NR

01/12

TD

6.00%

918,500.00

14/9/11

1,000,000

CREDIT UNION AUSTRALIA

N

NR

03/12

TD

5.74%

1,000,000.00

17/6/10

786,000

SUNCORP

N

A

06/14

TD

7.30%

786,000.00

29/4/11

2,000,000

COMMUNITY CPS

P

NR

01/12

TD

5.72%

2,000,000.00

29/8/11

1,000,000

ME BANK

Y

BBB

01/12

TD

5.90%

1,000,000.00

29/811

1,000,000

NEWCASTLE PERMANENT

Y

NR

01/12

TD

5.80%

1,000,000.00

7/9/11

2,000,000

SOUTHERN CROSS CR UNION

P

NR

03/12

TD

5.80%

2,000,000.00

12/5/11

1,000,000

INVESTEC BANK

N

BBB+

05/14

TD

7.48%

1,000,000.00

31/5/11

2,000,000

ING BANK (AUSTRALIA)

P

A1

03/12

TD

5.79%

2,000,000.00

28/9/11

4,200,000

WESTPAC BANK

N

AA

01/12

TD

5.85%

4,200,000.00

27/7/11

1,000,000

RABO BANK

P

AAA

5/12

TD

6.30%

1,000,000.00

8/8/11

1,000,000

RABO BANK

N

AAA

8/13

TD

6.50%

1,000,000.00

25/8/11

1,000,000

GREATER BUILDING SOCIETY

Y

NR

2/12

TD

6.05%

1,000,000.00

28/11/11

1,000,000

WIDE BAY LTD

Y

NR

04/12

TD

5.95%

1,000,000.00

28/11/11

1,000,000

ST GEORGE BANK

Y

AA-

02/12

TD

5.80%

1,000,000.00

30/11/11

1,000,000

ING DIRECT

Y

A1

01/12

TD

5.81%

1,000,000.00

30/11/11

1,000,000

ST GEORGE BANK

Y

AA-

02/12

TD

5.80%

1,000,000.00

30/11/11

2,000,000

NATIONAL AUSTRALIA BANK

Y

AA-

03/12

TD

5.99%

2,000,000.00

13/12/11

2,000,000

BANKWEST

Y

AA-

03/12

TD

6.00%

2,000,000.00

N/A

1,612,163

CBA BUSINESS ONLINE SAVER

N

A

N/A

CALL

4.75%

1,612,162.62

Total

60,336,463

 

 

 

 

AVG

4.68%

58,505,039.56

 

Note 1.    CP = Capital protection on maturity

                 N = No Capital Protection

                 Y = Fully covered by Government Guarantee

                 P = Partial Government Guarantee of $1,000,000

 

Note 2.    Type               Description

   CR                Credit                     Principal varies based on valuation, interest payable via a floating interest rate that varies except for those capital protected investments that have

                                                        transferred to their capital protection mechanism

E                     Equity                      Principal varies based on valuation, interest payable                         via a floating interest rate that varies except for

                                                                    those capital protected investments that have

                                                                    transferred to their capital protection mechanism.

MFD                Managed Fund       Principal varies based on fund unit

                                     Price valuation, interest payable varies depending upon fund performance.

   TD                Term Deposit          Principal does not vary during investment term.  Interest payable is fixed at the rate invested for the investment term.

CALL               Call Account           Principal varies due to cash flow demands from deposits/withdrawals, interest is payable on the daily balance at the cash rate +0.50%

 

Note 3.       Floating rate notes and Term Deposits can be traded on a day-to-day basis, and therefore Council is not obliged to hold the investments to the maturity dates.  Managed funds operate in a similar manner to a normal bank account with amounts deposited or withdrawn on a daily basis. There is no maturity date for this type of investment.

 

Note 4.       The coupon on these investments is zero due to the Capital Protection mechanism working.  This occurs when the investment falls below a certain level.  This coupon may be paid again in the future as the market recovers.

 

Note 5.       The following investment included in the November 2011 table (above) is a CDO that matured in December 2011.

                       

                   PRELUDE EUROPE LTD

 

Financial Implications

 

The reduction of the current value of Council’s portfolio is a result of the downturn in global markets stemming from the global financial crisis. It should be noted that Council’s exposure to the credit/equity markets is supported by capital protection which ensures that the initial value of the investment is not reduced when held to maturity.  In downward cycles, the capital is protected by allocating the investment to an underlying bond.  If the investment is 100% allocated to this bond, no interest will be paid up to maturity.  This will impact negatively on Council’s interest earnings on investments.

 

Council’s investment strategy is to invest for the long term while maintaining sufficient liquid investments to meet short term requirements. It is important that this strategy is maintained to ensure that principal attached to credit/equity investments is recovered over time as maturity occurs or ‘switch’ opportunities to alternative investments present themselves.

 

Statutory and Policy Compliance Implications

 

In accordance with clause 212 of the Local Government (General) Regulation 2005, the Responsible Accounting Officer of Council must provide Council with a monthly report detailing all monies Council has invested under section 625 of the Local Government Act 1993.

 

The Report must be presented at the next Ordinary Meeting of Council after the end of the month being reported.  In this regard, the current Council Meeting cycle does not always allow this to occur, especially when the second meeting of a month is a Strategic Planning Meeting or when the meeting dates are brought forward.  Under normal circumstances it is not possible to present the investment report to the first Ordinary Meeting in the month, as investment valuations required for the preparation of the report, are often received after the deadline for the submission of reports for the meeting.

 

Council’s investments are carried out in accordance with section 625(2) of the Local Government Act 1993 and Council’s Investment Policy. The Local Government Act 1993 allows Council to invest money as per the Ministers Order – Forms of Investment, last published in the Government Gazette on 11 February 2011.

 

Council’s Investment Policy includes the objective of maximising earnings from authorised investments and ensuring the security of Council Funds.

 

 

 

 

Report No. 12.18.

Budget Review - 1 October to 31 December 2011

Executive Manager:   Corporate Management

File No:                        FIN451010 #1185717

                                      

Principal Activity:

 

Financial Services

Summary:

 

This report is prepared to comply with Clause 203 of the Local Government (General) Regulation 2005 and to inform Council and the Community of Council’s estimated financial position for the 2011/2012 financial year, reviewed as at 31 December 2011.

 

This report contains an overview of the proposed budget variations for the General Fund, Water Fund and Sewerage Fund.  The specific details of these proposed variations are included in Annexure 5(a) and 5(b) for Council’s consideration and authorisation. 

 

Annexure 5(c) contains the new Integrated Planning and Reporting Framework (IP&R) Quarterly Budget Review Statement (QBRS) as outlined by the Division of Local Government in circular 10-32.

 

 

RECOMMENDATION: 

 

1.   That Council authorise the itemised budget variations as shown in Annexure 5(b) (#1189041) which includes the following results in the 31 December 2011 Quarterly Review of the 2011/2012 Budget:

 

a)    General Fund - $33,000 increase in accumulated surplus

b)    Water Fund - $30,400 decrease in reserves

c)    Sewerage Fund - $310,150 increase in reserves

 

2.   That Council authorise the creation of the Structural Change reserve as outlined in the below report, initially funded by $100,000 from the Employee Leave Entitlement (ELE) reserve.

 

3.   That Council authorise the budget allocation of $13,600 to cover the costs incurred for the Sandhills’ review from the savings made within this review.

 

4.   That Council adopt the revised working fund surplus of $340,800 for the 2011/12 financial year.

 

 

Attachments:

 

·       Budget Variations for the General, Water and Sewer Funds #1189044 [72 pages]............... Annexure 5(a)

·       Itemised Listing of Budget Variations for the General, Water and Sewerage Funds
#1189041 [5 pages]........................................................................................................ Annexure 5(b)

·       New Integrated Planning and Reporting framework (IP&R) required Quarterly Budget
Review Statement (QBRS) components #
1189038 [17 pages]............................................ Annexure 5(c)

 

Report

 

Council adopted the 2011/2012 budget on 30 June 2011 via resolution 11-546.  It also considered and adopted the budget carryovers from the 2010/2011 financial year, to be incorporated into the 2011/2012 budget, at its Ordinary Meeting held 25 August 2011 via resolution 11-693.  Since that date, Council has reviewed the budget taking into consideration the 2010/11 Financial Statement results and progress through the first quarter of the 2011/2012 financial year in the September 2011 Quarter Budget Review.  This report considers the December 2011 Quarter Budget Review.

 

The details of the budget review for the Consolidated, General, Water and Sewer Funds are included in Annexure 5(a), with an itemised listing in Annexure 5(b).  This aims to show the consolidated budget position of Council, as well as a breakdown by Fund and Principal Activity. The document in Annexure 5(a) is also effectively a publication outlining a review of the budget intended to provide Councillors with more detailed information to assist with decision making regarding Council’s finances.

 

Contained in the document at Annexure 5(a) is the following reporting hierarchy:

 

Consolidated Budget Cash Result

 

 

 


General Fund Cash Result     Water Fund Cash Result        Sewer Cash Result

 

 

 


Principal Activity                                 Principal Activity                                 Principal Activity

 

 

 


Operating Income       Operating Expenditure            Capital income            Capital Expenditure

 

 

The pages within Annexure 5(a) are presented (from left to right) by showing the original budget as adopted by Council on 30 June 2011 plus the adopted carryover budgets from 2010/2011 followed by the September review,  resolutions between September and December and the revote (or adjustment for this review) and then the revised position projected for 30 June 2012 as at 31 December 2011.

 

On the far right of the Principal Activity (pages 11 – 63 of 72), there is a column titled “Note”.  If this is populated by a number, it means that there has been an adjustment in the quarterly review.  This number then corresponds to the notes at the end of the Annexure 5(a) (pages 65 – 72 of 72) which provides and explanation of the variation.

 

There is also information detailing restricted assets (reserves) to show Council estimated balances as at 30 June 2012 for all Council’s reserves (pages 7 – 10 of 72).

 

A summary of Capital Works is also included by Fund and Principal Activity (page 64 of 72).

 

Division of Local Government Budget Review Guidelines:

 

The Division of Local Government on 10 December 2010, issued the new Quarterly Budget Review Guidelines via Circular 10-32, with the reporting requirements to apply from 1 July 2011.  This report includes for the second time a Quarterly Budget Review Statement (refer Annexure 5(c)) prepared by Council in accordance with the guidelines.

 

The Quarterly Budget Review Guidelines set a minimum standard of disclosure, with these standards being included in the Local Government Code of Accounting Practice and Financial Reporting as mandatory requirements for councils to address.  This is Council’s second attempt at preparing the Quarterly Budget Review Statement and as future quarterly budget reviews are undertaken the information provided will be further enhanced.

 

Since the introduction of the new planning and reporting framework for NSW Local Government, it is now a requirement for councils to provide the following components when submitting a Quarterly Budget Review Statement (QBRS):

 

·           A signed statement by the Responsible Accounting Officer on councils financial position at the end of the year based on the information in the QBRS

 

·           Budget review income and expenses statement in one of the following formats:

o          Consolidated

o          By fund (eg General, Water, Sewer)

o          By function, activity, program etc to align with the management plan/operational plan

 

·           Budget Review Capital Budget

 

·           Budget Review Cash and Investments Position

 

·           Budget Review Key performance indicators

 

·           Budget Review Contracts and Other Expenses

 

The above components are included in annexure 5(c):

 

Income and Expenditure Budget Review Statement by Type – This shows Councils income and Expenditure by type.  The original estimate in the far left column is reflective of pages 121 to 124 of the 2011-2014 Management Plan.  This has been split by Fund.  Adjustments are shown, looking from left to right.  These adjustments are commented on through pages 65 to 72 of Annexure 5(a).

 

Capital Budget Review Statement – This statement identifies in summary Council’s capital works program on a consolidated basis and then split by Fund.  It also identifies how the capital works program is funded. As this is the second quarterly review for the reporting period, the Statement may not necessarily indicate the total progress achieved on the delivery of the capital works program.  The December 2011 Quarterly Budget Review will give a better idea of how the capital works are tracking.

 

Cash and Investments Budget Review Statement This statement reconciles Council’s restricted funds (reserves) against available cash and investments.  Council has attempted to indicate an actual position as at 31 December 2011 of each reserve to show a total cash position of reserves with any difference between that position and total cash and investments held as available cash and investments.  It should be recognised that the figure is at a point in time and may vary greatly in future quarterly reviews pending on cash flow movements.

 

Key Performance Indicators (KPIs) Council is currently developing a series of KPIs to be built into the Long Term Financial Plan (LTFP currently under development).  At this stage, the KPIs within in this report are:

 

o          Debt Service Ratio - This assesses the impact of loan principal and interest repayments on the discretionary revenue of Council.

 

o          Rates and Annual Charges Outstanding Ratio – This assesses the impact of uncollected rates and annual charges on Councils liquidity and the adequacy of recovery efforts

o          Asset Renewals Ratio This assesses the rate at which assets are being renewed relative to the rate at which they are depreciating.

 

These may be expanded in future to accommodate any additional KPIs that Council may adopt to use in the Long Term Financial Plan (LTFP.)

 

Contracts and Other Expenses This report highlights any contracts Council entered into during the October to December quarter that are greater then $50,000.

 

CONSOLIDATED RESULT

 

The following table provides a summary of the overall Council budget on a consolidated basis inclusive of all Funds budget movements for the 2011/2012 financial year projected to 30 June 2012 but revised as at 31 December 2011.

 

2011/2012 Budget Review Statement as at 31 December 2011

Original Estimate  1/7/2011

Adjustments to December including Previous Reviews

Proposed December Review Revotes including Resolutions

 

Revised Estimate 30/6/2012

Operating Revenue

58,926,500

118,500

22,000

59,067,000

Operating Expenditure

66,927,200

4,017,100

138,000

71,082,300

Operating Result – Surplus/Deficit

(8.000.700)

(3,898,600)

(116,000)

(12,015,300)

Add: Capital Revenue

6,433,200

1,354,500

0

7,787,700

Change in Net Assets

(1,567,500)

(2,544,100)

(116,000)

(4,227,600)

Add: Non Cash Expenses

13,397,800

3,098,200

0

16,496,000

Add: Non-Operating Funds Employed

1,351,600

0

(150,000)

1,201,600

Subtract: Funds Deployed for Non-Operating Purposes

(29,350,965)

(1,356,985)

323,250

(30,384,700)

Cash Surplus/(Deficit)

(16,169,065)

(802,885)

57,250

(16,914,700)

Restricted Funds – Increase / (Decrease)

(16,482,165)

(811,185)

24,250

(17,269,100)

Forecast Result for the Year – Surplus/(Deficit) – Working Funds

313,100

8,300

33,000

354,400

 

As the table above highlights, the forecast result for the year has improved by an estimated $33,000 during the review period including Council resolutions.  Results by General, Water and Sewerage Fund are provided below:

 

GENERAL FUND

 

In terms of the General Fund projected Accumulated Surplus (Working Funds) the following table provides a reconciliation to the estimated position as at 31 December 2011:

 

Opening Balance – 1 July 2011

320,700

Plus original budget movement and carryovers

313,100

Council Resolutions July – September Quarter

(30,000)

September Quarter Budget Review – increase / (decrease)

38,300

Council Resolutions October – December Quarter

0

December Quarter Budget Review – increase / (decrease)

33,000

Forecast Working Funds Result – Surplus/(Deficit) – 30 June 2012

354,400

Recommendations within this Report – increase / (decrease)

(13,600)

Estimated Working Funds Closing Balance – 30 June 2012

661,500

 

The General Fund financial position has improved by $33,000 (including budget movements and Council resolutions) in total as a result of this budget review. The various factors that have impacted on this result have been highlighted in the Annexure 5(a).

 

Council Resolutions

 

·                The were no resolutions that had an impact on the Accumulated Surplus (Working funds) during the October to December quarter for the General Fund.

 

Budget Adjustments

 

The budget adjustments identified in Annexure 5(a) and 5(b) for the General Fund have been summarised by division in the following table:

 

 

 

 

 

 

Division

Expenditure Increase/

(Decrease) $

Revenue Increase/

(Decrease) $

Accumulated Surplus (Working Funds) Increase/ (Decrease) $

General Managers Office

0

0

0

Organisational Support

0

0

0

Society and Culture

1,500

1,500

0

Corporate Management

27,000

39,000

12,000

Community Infrastructure

(513,900)

(515,900)

(2,000)

Environment and Land Use

15,000

38,000

23,000

Total Budget Movements

(497,400)

(464,400)

33,000

 

Budget Adjustment Comments

 

Within each of the Divisions of the General Fund, are a series of budget adjustments identified in detail at Annexure 5(a) and 5(b).  More detailed notes on these are provided in Annexure 5(a) from pages 65 to 72 of 72 but in summary the major additional items included are summarised below by Division and are included in the overall budget adjustments table above.

 

Society and Culture

 

Both revenue and expenditure have increased by $1,500.  This is due to a reduction of $5,000 for the International Day for Older People and an increase of $6,500 due to the purchase of a Free Wheeler Beach Access chair for Brunswick Heads.  Council resolved at their meeting of 8 December 2011 through Resolution 11-1001, point 3 “That Council investigate the following items:

a)      Storage facility of free wheeler beach wheelchair for Brunswick, consult with Surf Life Saving club;

b)      Explore the purchase of additional or new wheelchair.

 

It is anticipated the cost of the Free Wheeler Beach Access chair will be $4,230, with the remaining $2,270 to construct a storage area at the Brunswick Heads Community Centre.  This storage area would be enclosing a current paved area at the Community Centre.  From a compliance point of view, this conversion of space is permissible as long as the gate opens outwards and does not require a key from the inside.  Funding is available from the Community Development reserve.

 

Corporate Management

 

Within the Caravan Park program, capital works increased by $27,000.  These are funded through the Caravan Park reserve.

 

Within the Compliance Program an additional $12,000 in revenue has been added given the current level of Notices and Orders issued by the Compliance area.

 

Community Infrastructure

 

·                Within the Depot Services Program both revenue and expenditure has increased by $463,100.  This is due to a reduction of $200,000 in hire charges attributable to plant, offset by savings in plant expenditure.  An increase of $663,100 for the purchase of plant to reflect the 2011/12 program that was reported to Council as part of the 10 year plant replacements program. (Res 2011-646).  This is to be funded through the plant reserve.

 

·                Within the Local Roads and Drainage Program, the overall decrease in revenue and expenditure of $481,700 is primarily associated with the moving of the Rifle Range Road works ($500,000), funded through Section 94 from the 2011/12 to 2012/13 budget, and the increase of various storm water works ($18,300) funded through the storm water reserve.

 

·                Within the Open Space and Recreation Program, revenue and expenditure is decreasing by $34,200 and $32,200 respectively.  This relates to section 94 funded capital works that cannot be funded through this source.  The difference of $2,000 is attributable to the demolition of the Rotunda in Mullumbimby.  A separate report is on the agenda of 9th February 2012.

 

Environment and Land Use

 

·                Within the Development Assessment Program, revenue has increased by $47,000 mainly due to an increase in inspection fees

 

·                Within the Land and Natural Environment Program, both revenue and expenditure has increased by $15,000 respectively mainly due to grants being received for the Food Links Project, Mullum Harvest Parade, the Greenhouse Action strategy and the Emergency Action Sub plan projects.

 

·                Within the Certification and Customer Services Program, revenue has decreased by $24,000 due to a footpath dining fee income not going to meet the budget for the year.

 


Recommendations

 

Creation of a Structural Change Reserve

 

It is recommended that Council create a new reserve entitled Structural Change for the purpose of funding structural changes decided by Council as permitted under the Local Government Act.  It is proposed to cap this reserve at $300,000, initially funded through a $100,000 transfer from the Employee Leave Entitlement (ELE) reserve.  Subsequent allocations to this reserve would be through identified savings, including any that are reported pursuant to the quarterly financial reviews and consequently would build up over time.

 

Sandhill’s Review

 

The Strategic Planning Committee resolved under delegated authority on 26 May 2011:

11-427 Resolved (in part):

 

b)   “that during 2011/12 management investigate the feasibility of different models of delivery of early childhood education at the Sandhills Early Childhood Centre with a view to confirming the model adopted by Council for commencement by 2012/13 with funding for the feasibility assessment to be allocated as detailed in the report.”

 

The report (#1085765) noted on page 4 that the estimated cost of the feasibility investigation would be approximately $15,000 to be funded from General Fund savings identified in the report.  The actual cost of this report was $13,586.36.  It is recommended to fund the cost of this report from savings within this review.

 

WATER FUND

 

After completion of the 2010/2011 Financial Statements the Accumulated Surplus (Working Fund) balance for the Water Fund, as at 30 June 2011, is $1,529,538 with capital works reserves of $1,739,500.  It also held $8,569,400 in section 64 developer contributions at this time.

 

The estimated Water Fund reserve balances as at 30 June 2012, and forecast in this Quarter Budget Review, is derived as follows:

 

Capital Works Reserve

 

Opening Reserve Balance at 1 July 2011

1,739,500

Plus original budget reserve movement

222,800

Less reserve funded carryovers from 2009/2010

(487,000)

Resolutions July -  September Quarter – increase / (decrease)

(615,000)

September Quarterly Review Adjustments – increase / (decrease)

(77,600)

Resolutions October -  December Quarter – increase / (decrease)

0

December Quarterly Review Adjustments – increase / (decrease)

(30,400)

Forecast Reserve Movement for 2011/2012 – Increase / (Decrease)

(987,200)

Estimated Reserve Balance at 30 June 2012

752,300

 

Section 64 Developer Contributions

 

Opening Reserve Balance at 1 July 2011

$8,569,400

Plus original budget reserve movement

(490,000)

Less reserve funded carryovers from 2009/2010

(139,600)

Resolutions July -  September Quarter – increase / (decrease)

0

September Quarterly Review Adjustments – increase / (decrease)

90,000

Resolutions October -  December Quarter – increase / (decrease)

0

December Quarterly Review Adjustments – increase / (decrease)

0

Forecast Reserve Movement for 2011/2012 – Increase / (Decrease)

(539,600)

Estimated Reserve Balance at 30 June 2012

8,029,800

 

Movements for Water Fund can be seen in Annexure 5(a), (pages 49 to 53 of 68) with a proposed estimated decrease to reserves (including S64 Contributions and unexpended loans) overall of $30,400 from this Quarter.

 

SEWERAGE FUND

 

After completion of the 2010/2011 Financial Statements the Accumulated Surplus (Working Fund) balance for the Sewer Fund, as at 30 June 2011, was $1,450,700 with capital works reserves of $632,400, plant reserve of $667,200 and lab reserve of $47,200. It also held $3,284,200 in section 64 developer contributions and $2,136,100 in unexpended loans.

 

Capital Works Reserve

 

Opening Reserve Balance at 1 July 2011

$632,400

Plus original budget reserve movement

(54,200)

Less reserve funded carryovers from 2010/2011

(725,100)

Resolutions July -  September Quarter – increase / (decrease)

(641,600)

September Quarterly Review Adjustments – increase / (decrease)

(6,100)

Resolutions October -  December Quarter – increase / (decrease)

0

December Quarterly Review Adjustments – increase / (decrease)

300,150

Forecast Reserve Movement for 2011/2012 – Increase / (Decrease)

(1,126,850)

Estimated Reserve Balance at 30 June 2012

(494,450)

 

Plant Reserve

 

Opening Reserve Balance at 1 July 2011

$667,200

Plus original budget reserve movement

0

Less reserve funded carryovers from 2010/2011

0

Resolutions July -  September Quarter – increase / (decrease)

0

September Quarterly Review Adjustments – increase / (decrease)

0

Resolutions October -  December Quarter – increase / (decrease)

0

December Quarterly Review Adjustments – increase / (decrease)

0

Forecast Reserve Movement for 2011/2012 – Increase / (Decrease)

0

Estimated Reserve Balance at 30 June 2012

667,200

 

Lab Reserve

 

Opening Reserve Balance at 1 July 2011

$47,200

Plus original budget reserve movement

(47,600)

Less reserve funded carryovers from 2010/2011

0

Resolutions July -  September Quarter – increase / (decrease)

0

September Quarterly Review Adjustments – increase / (decrease)

0

Resolutions October -  December Quarter – increase / (decrease)

0

December Quarterly Review Adjustments – increase / (decrease)

0

Forecast Reserve Movement for 2011/2012 – Increase / (Decrease)

0

Estimated Reserve Balance at 30 June 2012

(400)

 


Section 64 Developer Contributions

 

Opening Reserve Balance at 1 July 2011

$3,284,200

Plus original budget reserve movement

(429,000)

Less reserve funded carryovers from 2010/2011

(319,400)

Resolutions July -  September Quarter – increase / (decrease)

0

September Quarterly Review Adjustments – increase / (decrease)

10,000

Resolutions October -  December Quarter – increase / (decrease)

0

December Quarterly Review Adjustments – increase / (decrease)

10,000

Forecast Reserve Movement for 2011/2012 – Increase / (Decrease)

728,400

Estimated Reserve Balance at 30 June 2012

2,555,800

 

Unexpended Loans

 

Opening Reserve Balance at 1 July 2011

$2,136,100

Plus original budget reserve movement

0

Less reserve funded carryovers from 2010/2011

(2,136,100)

Resolutions July -  September Quarter – increase / (decrease)

0

September Quarterly Review Adjustments – increase / (decrease)

1,482,500

Resolutions October -  December Quarter – increase / (decrease)

0

December Quarterly Review Adjustments – increase / (decrease)

0

Forecast Reserve Movement for 2011/2012 – Increase / (Decrease)

(653,600)

Estimated Reserve Balance at 30 June 2012

1,482,500

 

Movements for the Sewerage Fund can be seen in Annexure 5(a), (pages 57 to 63 of 72) with a proposed estimated overall increase to reserves (including S64 Contributions and unexpended loans) of $310,150 from this review.  The Sewer capital works reserve is projected to be overdrawn by $494,450 in the 2011/12 financial year.  This will need to be closely monitored in subsequent budget reviews.  This forecast result will be dependent on the level of capital works actually carried out as the 2011/2012 financial year progresses.

 

Legal Expenses

 

One of the major financial concerns for Council over previous years was legal expenses. Not only does this item represent a drain on rate income, but it is also susceptible to large fluctuations. 

 

The table that follows indicates the allocated budget and actual legal expenditure within Council on a fund basis.

 

Total Legal Income and Expenditure as at 31 December 2011

 

 

Program

2011/2012

Budget ($)

 

Actual ($)

Percentage To Revised Budget

Income

 

 

 

Compliance

0

25,000

0%

Development Assessment

0

470

0%

Total Income

0

25,470

0%

 

 

 

 

Expenditure

 

 

 

General Managers Office

105,700

4,920

5%

Administrative Services

2,500

3,491

139%

Property Services

10,000

0

0%

Crown Property

1,000

0

0%

Council Caravan Parks

5,000

0

0%

Asset Management Services

1,500

0

0%

Development Assessment

555,500

19,433

3%

Building Certification

1,000

0

0%

Environmental Health Services

1,000

0

0%

Compliance Services

183,000

57,295

31%

Ranger Services

3,000

0

 

Community Planning

55,000

11,348

21%

Total Expenditure General Fund

924,200

96,487

10%

**Financial Services – S94

15,000

2,766

18%

**Sewerage Fund

30,000

0

0%

** These are restricted funds.

 

In addition to the above, however, there was a further $32,000 in legal costs billed but not paid at the end of December 2011, representing a further approximately 3% of total General Fund budget.

 

The current status of the Legal Services Reserve is shown below:

 

Legal Reserve

 

Opening Reserve Balance at 1 July 2011

$553,100

Less amount committed for Complaints investigations (Res 09-350)

(54,100)

Less Resolution 10-960

(420,000)

Forecast Reserve Movement for 2011/2012 – Increase / (Decrease)

(474,100)

Estimated Reserve Balance at 30 June 2012

$79,000

 

Because fluctuations in legal expenditure can happen from year to year, it is important to ensure that a legal reserve is maintained at a level that enables Council to manage these fluctuations.

 

Summary

 

The 31 December 2011 Budget Review of the 2011/2012 Budget has produced an estimated surplus result of $33,000. This result will increase the estimated accumulated surplus (working funds) position attributable to the General Fund by $33,000 from $642,100 to $675,100. This amount would be reduced $13,600 to $661,500 if Council adopts recommendation 3.

 

Statutory and Policy Compliance Implications

 

In accordance with Clause 203 of the Local Government (General) Regulation 2005 the Responsible Accounting Officer of a Council must:-

(1)     Not later than 2 months after the end of each quarter (except the June quarter), the responsible accounting officer of a council must prepare and submit to the council a budget review statement that shows, by reference to the estimate of income and expenditure set out in the statement of the council’s revenue policy included in the operational plan for the relevant year, a revised estimate of the income and expenditure for that year.

 

(2)     A budget review statement must include or be accompanied by:

 

(a)     a report as to whether or not the responsible accounting officer believes that the statement indicates that the financial position of the council is satisfactory, having regard to the original estimate of income and expenditure, and

(b)     if that position is unsatisfactory, recommendations for remedial action.

 

(3)     A budget review statement must also include any information required by the Code to be included in such a statement.

 

Statement by Responsible Accounting Officer

 

This report indicates that the short term financial position of the Council is satisfactory for 2011/2012, having consideration of the original estimate of income and expenditure at the 31 December 2011 Quarter Budget Review. 

 

This opinion is based on the estimated accumulated surplus (working funds) position and the anticipated improvement to that position by the current indicative budget surplus of $340,800 for 2011/2012 (including adjustment for adoption of recommendation 3.). 

 

That being said, the estimated Working Funds closing balance of $661,500  is still significantly below Council’s adopted target of $1,000,000 by an estimated $338,500 but an improvement on the position as at 30 June 2011.

 

 

 

Report No. 12.19.

Council Resolutions Review for the period October to December 2011

Executive Manager:   Corporate Management

File No:                        COR405520 #1177651

 

Principal Activity:

 

Administration

Summary:

 

This report provides an update on the status of Council resolutions outstanding and proposed actions, and on resolutions completed, for consideration by Council.

 

 

RECOMMENDATION:

 

1.       That Council receive and note the information provided in this report on outstanding Council resolutions.

 

2.       That Council note the completed resolutions in Annexure 4(b) (#1188926).

 

 

Attachments:

 

·       Summary Report on Council Resolutions – December 2011 Quarter #1188943 [1 page]....... Annexure 4(a)

·       Completed Resolutions – October to December 2011 #1188926 [64 pages]....................... Annexure 4(b)

·       Outstanding Council Resolutions status as at 31 December 2011 #1188936 [230 pages]..... Annexure 4(c)

 

Please note: Annexure 4(b) and 4(c) will be provided to Councillors on the Agenda CD and a hardcopy available in the Councillor’s Room.  The public may view these annexures online at www.byron.nsw.gov.au/meetings or at the Administration Centre.

 

Report

 

This report provides a quarterly update on the status of Council resolutions to 31 December 2011.

Council resolutions relate across all Principal Activities in Council’s Management Plan with responsible officers within Council providing input into this status report.

A summary status report is at Annexure 4(a).

 

·           211 outstanding resolutions balance from previous quarter

·           261 new resolutions created during the October to December 2011 quarter

·           148 resolutions completed during period 1 October to 31 December 2011

·           319 outstanding Council resolutions current Council (2008-2012)

·           5 outstanding Council resolutions from previous Council (2004-2008)

·           0 outstanding Council resolution from 1999-2004 Council

324 closing balance of outstanding resolutions as at 31 December 2011

 

Details of completed resolutions for the period 1 October to 31 December 2011 are provided at Annexure 4(b).


An update on the status of outstanding resolutions is provided at Annexure 4(c) which made up of:

·                previous Council 2004-Sept 2008 (pages 1 to 7 of Annexure 4(c))

·                current Council Oct 2008-2012 (pages 8 to 230 of Annexure 4(c))

 

Financial Implications

 

A number of resolutions note that resource constraints limit completion of action required. Council may consider the priority of the respective resolutions and whether further action is still required.

 

Statutory and Policy Compliance Implications

 

·                Council requires a quarterly report be prepared to allow it to consider the quarterly Management Plan and Budget reviews along with a review of Council resolutions.

·                Implementation of Council resolutions in accordance with the Local Government Act 1993.

 

 

 

Report No. 12.20.

Removal of Rotunda in Mullumbimby Reserve

Executive Manager:   Corporate Management

File No:                        BLD700000 #1168533

 

Principal Activity:

 

Environmental Services

Summary:

 

Homeless persons occupy the rotunda in Mullumbimby Reserve in Mullumbimby public park bound by Gordon, Tincogan and Dalley Streets Mullumbimby.

 

Over the last year or so, Council and Mullumbimby Police have received numerous complaints from the community objecting to people occupying and living in the rotunda. 

 

The issuing of penalties to homeless people who have no money and no formal residential address is not effective as an enforcement tool. When such individuals cannot pay the penalties, the courts will not take enforcement action. All that is achieved is making individuals angry and generating confrontations which may result in physical harm to individuals.

 

Despite the presence of the regulatory signs, enforcement of signposted restrictions by NSW Police or Council Rangers is not considered to be possible nor practicable.

 

Since September 2011 there have been a number of customer requests each demanding that Council should not allow this situation to continue.

 

The options considered before coming to the final recommendation were:

 

1.          Removal of all or part of the corrugated metal roof to make the structure uninhabitable, but keeping the remaining seating for public use. This option was unfunded, and was assessed to cause the deteriorated timber structure to become unstable and hasten the collapse of the structure.

2.          Fully enclosing the rotunda and it thereafter being locked to access after hours. The structure was assessed to be so poorly constructed so as to prevent the securing of the structure to exclude access after hours. The costs of such works were considered to be more than Council would fund for such a small community structure.

3.          Total demolition of the corrugated metal roof and timber walls and seats, and removal of the concrete slab. All waste material to be disposed of at the Myocum landfill site, and the site dressed and turfed.

 

 

RECOMMENDATION:

 

That Council authorise the immediate demolition and removal of the rotunda in the Mullumbimby Park and include a budget of $2,000 to undertake the required works in the December 2011 Quarterly Budget Review.

 

Attachments:

 

·       CONFIDENTIAL Customer Requests regarding the removal of the rotunda #1160024,
#1148860, #1129116, #1154691, #1154929, #1144566 [6 pages]........................................... Annexure 19

 

Report

 

The rotunda is a hexagonal sided hardwood timber structure with a corrugated metal roof located in a Council reserve adjoining the Civic Hall in Dalley Street Mullumbimby. Built on a concrete slab, each side of the rotunda is approximately 2.8 metres wide, and is generally open.

 

A public notice is displayed near the rotunda indicating that camping in the Park is prohibited under section 632 of the Local Government Act 1993.

 

Figure 1: Vacant rotunda at Tincogan Street Mullumbimby (25/1/2012)

 

In September 2011 Mullumbimby Police had cause to attend the rotunda and speak with the male occupants who had made the rotunda their temporary place of residence. The report from the Mullumbimby Police officers included graphic detail about the state of the structure, including waste and rubbish in and around the rotunda. As a result the police officers observations, a complaint was made to Council about the serious public health concerns. Council’s Environmental Services team was delegated to investigate and report to Manager Governance and the Executive Team.

 

A subsequent inspection of the rotunda on 19 September 2011 found a single male person living in the structure. The sides of the rotunda had been fully enclosed by fabric and a number of personal items were located within the structure, and around the outside of the rotunda. There was no kitchen, toilet, shower or washing facilities available. The area around the rotunda smelt, with the site in general, being observed as unsightly and unhealthy as a result of the occupation.

 

Figure 2: Rotunda occupied by individuals cause complaints to Council and Police

 

A review of the history of the construction and use of the rotunda was undertaken including a search of Councils’ records, a review of ‘heritage’ listed items, advice from the Brunswick Valley Historical Society, and discussions with elderly members of the Mullumbimby community. There was no information about when the rotunda was constructed, and whether the structure was associated with any special community purpose.

 

Over the last year or so, Council and Mullumbimby Police have received numerous complaints from the community objecting to people occupying and living in the rotunda. 

 

Police and Council Rangers concur that the issuing of penalties to homeless people who have no money, and no formal residential address is an effective enforcement tool. When such individuals cannot pay the penalties, the courts will not take enforcement action. All that is achieved is making individuals angry and generating confrontations which may result in physical harm to individuals.

 

Despite the presence of the regulatory signs, enforcement of signposted restrictions by NSW Police or Council Rangers is not considered to be possible nor practicable.

 

Since September 2011 there have been a number of customer requests each demanding that Council should not allow this unhealthy and unsightly situation to continue.

 

The complaints originated from a broad cross section of the Mullumbimby community. From the elderly residents concerned for their personal safety and their grand children using the Park, NSW Police, business owners such as the Mullumbimby Ex-Serviceman’s Club whose customers have to experience the intrusion of the unsightly structure and the inhabitants, members of the CWA who use the nearby hall and users of the Mullumbimby Civic Hall. See Confidential Annexure 19.

 

Many complainants alleged that they had raised the issue repeatedly with councillors over previous years, but were very upset that nothing has been done to rectify this unhealthy and illegal use of the public reserve.

 

Since the occupants were advised about complaints from the community the structure has been empty and unoccupied.

 

The options considered before coming to the final recommendation:

 

1.        Removal of all or part of the corrugated metal roof to make the structure uninhabitable, but keeping the remaining seating for public use. This option was unfunded, and was assessed to cause the deteriorated timber structure to become unstable and hasten the collapse of the structure.

2.        Fully enclosing the rotunda and it thereafter being locked to access after hours. The structure was assessed to be so poorly constructed so as to prevent the securing of the structure to exclude access after hours. The costs of such works were considered to be more than Council would fund for such a small community structure.

3.        Total demolition of the corrugated metal roof and timber walls and seats, and removal of the concrete slab. All waste material to be disposed of at the Myocum landfill site, and the site dressed and turfed.

 

Financial Implications

 

A quote from Council staff advises that the cost of demolishing the rotunda and depositing the waste at Myocum Landfill depot would be at least $2,000. No budget currently exists for this work but it is proposed to include provision of $2,000 in the December 2011 Quarterly Budget Review.

 

In addition, some complainants requested that after the rotunda is demolished, that Council should erect a children’s playground on the park. The estimated cost of the most basic children’s play equipment ($10,000+), a ‘soft fall’ area ($4,000), surrounding fence ($3,000) and shade structure over the equipment ($5,000) places this request at a minimum value of $22,000. No budget exists for this work. The close proximity to Tincogan Street is the reason that a barrier fence would be required if the site was used for a children’s playground.

 

Statutory and Policy Compliance Implications

 

The rotunda is in a poor structural condition which has not been enhanced by the occupation by transient individuals.

 

The current situation is that nobody is occupying the rotunda, and on this basis no assessment has been made of any costs to relocate ‘homeless’ individuals.

 

In any event Councils’ Homelessness Policy (08/106) includes advice that “primarily homelessness is a result of ineffective macro economic, housing and social policies that are the responsibility of State and Commonwealth governments”. The Rotunda as a structure is not considered as being “safe, secure and appropriate” and is not therefore an appropriate place for consideration within the ambit of the Policy.

 

It is at the request of members of the Mullumbimby community that the rotunda be demolished to prevent individuals drinking, fighting, disturbing the neighbours, threatening children and causing a general public health and safety hazard.

 

The community would like council to replace the rotunda structure with purpose-built children’s play equipment.

 

 

 

ENVIRONMENT AND PLANNING – EXECUTIVE MANAGER’S REPORTS

 

Report No. 12.21.

Byron Shire Greenhouse Emission and Energy Consumption Status Report - 2010/11 Period

Executive Manager:   Environment and Planning

File No:                        PLN657900 #1186651

 

Principal Activity:

 

Environment and Planning

Summary:

 

This report provides Council with an update of Council’s energy and greenhouse performance in relation to Council’s adopted greenhouse reduction target.

 

 

RECOMMENDATION:

 

That Council note the Byron Shire Corporate Greenhouse Emission and Energy Consumption Status Report 2010/11 (Annexure 26, #1075732).

 

 

Attachments:

 

·       Byron Shire Corporate Greenhouse Emission and Energy Consumption Status
Report 2010/11
#1075732 [7 pages]................................................................................... Annexure 26


Report

 

At the Ordinary Meeting of Council on 10/2/11 Council resolved:

 

11-11:

 

1.       That Council develop a Corporate Greenhouse Emission and Energy Consumption Reporting process that will be reported to Council’s Executive Team, staff and Councillors on a biannual basis.

2.       That Council adopt a revised corporate greenhouse emission reduction target of a minimum 30% reduction in greenhouse gases below 2003/04 levels by 2020.

3.       That Staff report back to the Committee on initiatives to reduce fuel consumption and energy use and consider the long term management of Council owned buildings to reduce the need for air-conditioning.

4.       That each division of Council develop long term sustainability goals and targets to
recognise investment in sustainability, including energy consumption and reductions, over a 20 year period, to inform decision making.

 

This report replates to part 1 of the above resolution.  Accordingly, Council’s Sustainability Officer has prepared a ‘2010/11 Byron Shire Corporate Greenhouse Emission and Energy Consumption Status Report’ (Annexure 26).  This report was presented to Council’s Executive Team on 20/09/11 and has been summarised below.

 

1.  Greenhouse Performance:
Council has adopted a revised corporate greenhouse emission reduction target of: a minimum 30% reduction in CO2 emissions below 03/04 levels by 2020 (Res. 11-11). This equates to a minimum target of 5,167 tonnes of CO2e by 2020.


During the 2010/11 period, Council produced 7,388 tonnes of CO2e. This represents a negligible change compared to the previous year, but is significantly higher than the 2010/11 projected target of 6,422 tonnes of CO2e required to meet Council’s 2020 corporate emissions target. Graphs 1 and 2 (below) show that whilst emissions have stabilised over the 2010/11 period, Council is not on target to achieve its adopted corporate emissions target by 2020.

Graph 1. Byron Shire Corporate Emissions Tracking Graph    

Graph 2. Byron Shire Corporate Emissions Profile

 

 

2. Energy Performance:
While corporate electricity consumption and greenhouse emissions appear to have stabilised, energy costs have significantly increased (by approx. $37,000) over the 10/11 period (excluding street lighting), due to increases in the cost per unit of electricity (Graph 3).

Graph 3. Byron Shire Corporate Emissions Tracking Graph (excludes street lighting)
* 1 Gigajoule (GJ) = 277.7 KWh

 

3. Anomalies Reporting:

To build a more systematic and accountable approach to monitoring Council’s corporate energy consumption, each Council facility has been assigned by Division. In instances where a significant change in energy consumption has occurred within a reporting period (compared to the same quarter in the previous year), the anomaly has been documented and provided to the responsible EM for review and explanation to increase the efficiency of Council operations.

 

The last review of anomaly accounts was conducted in September 2011 and sought the following commentary for accounts denoting >25% increase in energy consumption (Table 1).

 

 

Table 1 – Anomaly Accounts for Investigation

Accounts showing significant increase in consumption compared to the same quarter in previous year.

Period: April - June 2011

Responsibility

Account Name

Meter No.

% increase

kWh increase

Explanation?

Action? (if any)

Water and Recycling

SEWERAGE PUMP STATION, KIAH CLOSE

NFFFAA12975

37%

11,595

No response received

 

Water and Recycling

OLD PACIFIC HWY , BRUNSWICK HEADS, (TREATMENT PLANT)

46003680

1,387%

4,383

No response received

 

Water and Recycling

SEWERAGE PUMP STATION, ANN STREET

44071804110

33%

1,336

No response received

 

Water and Recycling

SEWERAGE PUMP STATION, SUFFOLK PARK CARAVAN PARK

44071856935

329%

1,244

No response received

 

Community Infrastructure

SOCCER GROUND, BRUNSWICK HEADS

44071862783

25%

319

Previous account was for 69 days period versus 91 days. Daily average consumption rose from 15.12 kWh to 17.42 kWh (approx 15% increase)

No action required

 

4. Abatement Action Recorder:

 

The following emission abatement actions have been documented as contributing towards Council’s 2020 corporate emissions target (Table 2).

 

Table 2 – Abatement Actions

Abatement Action

Action Date

Annual Energy Saving

Annual Dollar Saving

Annual Co2

Saving

Payback Period

Lighting efficiency retrofit of Council admin centre

March 2011

53 MWh

$14,000

57 tonnes

3.5 years

5kw solar system install at Brunswick Valley Community Centre

September

2010

7.7 MWh

$4,600

7.5 tonnes

5 years

10kw solar system install at Myocum Landfill

June 2011

15 MWh

$9,000

16 tonnes

6 years

Solar hot water retrofit of community buildings (5 systems), incl. Ocean Shores, Brunswick Valley & Suffolk Park Community Centre, Mullum Neighbourhood Centre and Depot.

September 2011

(7 - 48 kWh x 5)

137 kWh

($160 - $1,000 x 5) $2,900

(1 - 5 tonnes x 5) up to 15 tonnes

8 years

Streetlight upgrade

December 2011

387 MWh

$126,000

410 tonnes

1 year

 

Financial Implications

 

No costs identified as a direct result of this report. However, the report suggests greater investment in energy mitigation initiatives is required.

 

Statutory and Policy Compliance Implications

 

The report indicates that Council is not on-track to meet its adopted greenhouse reduction target, as per Res 11-11. Furthermore, over the 2011/12 period, Councils emissions are expected to increase with the operation of the Byron Regional Sporting Complex and Valances Road Sewerage Treatment Plant.

 

 

 

Report No. 12.22.

Evaluation of Trial Beach Scraping Episode, New Brighton Beach

Executive Manager:   Environment and Planning

File No:                        PLN360100 #1173715

 

Principal Activity:

 

Environment and Planning

Summary:

 

This report analyses the biological and physical impacts, cost and logistical issues associated with the Trial Beach Scraping Episode, New Brighton Beach and makes subsequent recommendations regarding a future beach scraping program at this location. The trial commenced in the latter half of 2010 and was conducted under the Natural Disaster Resilience Program with funding from the State and Commonwealth Government as well as Council.

 

 

RECOMMENDATION:

 

1.       That Council note that, overall, the Trial Beach Scraping Episode at New Brighton Beach reduced coastal hazard threat by increasing dune volume and resulted in minimal environmental harm, but that the works were not sufficient to fully offset coastal hazards and /or future climate change and that such works are unlikely to be a long term coastal management solution at this location.

 

2.       That Council commences the implementation of a beach scraping program at New   Brighton in 2013/2014 to attempt to maintain, in the short term, a preferred dune profile, volume, beach accessibility and recreational amenity; noting that:

 

a)      the proposed program will not remove the immediate coastline hazard threat to infrastructure and private property from a design storm event (100 year ARI), but is likely to modestly reduce the severity of this threat;

 

b)      adequate funding arrangements need to be established, as such a further report is to be tabled for Council’s consideration, by no later than October 2012, canvassing options for funding the program including the option to apply for a special rate increase;

 

c)      prior to the implementation of any scraping works, it needs to be established that appropriate physical conditions are met;

 

d)      each beach scraping episode is to be accompanied by a scientifically robust physical monitoring program, similar to that implemented during the Trial Beach Scraping Episode at New Brighton; and

 

e)      an adaptive management approach is to underpin the program, and will be used to inform the ongoing viability of the works as well as other issues such as the scheduling of works and amount of sand to be scraped each episode.

 

 

Attachments:

 

·       The Effects of Beach Scraping on the Infauna of New Brighton Beach, Northern NSW
#1159025 [35 pages]..................................................................................................... Annexure 36(a)

·       New Brighton Beach Scraping Trial: Analysis of Dune and Beach Profile Data
#1187097 [83 pages]..................................................................................................... Annexure 36(b)


 

Report

 

Background

 

At the Ordinary Council meeting of 17 December 2009, Council resolved:

 

09-1159 Resolved:

 

1.   That Council note the attached technical report “Development of a Proposal and Environmental Assessment of Beach Scraping – New Brighton and South Golden Beach” [Annexure 5(a) #914162].

 

2.   That Council resolve to further the progression of a trial beach scraping episode for the New Brighton Beach compartment (and note that Council has previously undertaken this work with a degree of success in the past) as proposed in Section 12.9 of Annexure 5(a) by:

 

a)    Undertaking Significance Assessments in accordance with Table 6.1 in Appendix A of Annexure 5(a), to be funded under existing Coastal and Estuary budget (#2606.012).

 

b)    Seeking relevant state government approvals for beach scraping works at New Brighton and South Golden Beaches as per Section 1.3 in Appendix A of Annexure 5(a) by:

 

i.     Developing and lodging a Preliminary Project Application report for submission to the Minister for Planning to decide whether the project would be assessed under Part 3A of the Environmental Planning and Assessment Act, 1979.

 

ii.     Subject to the advice of the Minister for Planning, that Council proceed with seeking relevant approvals for the undertaking of beach scraping works.

 

3.   That subject to completing relevant environmental assessments and gaining approvals for beach scraping works, Council resolve to consider a report on the findings of the required environmental assessment(s) and status of approvals for undertaking beach scraping.

 

4.   That Council consider allocating the full funding for a trial beach scraping episode at New Brighton Beach of $130,800 from the 2010/11 budget, with a funding application to DECCW Coastal Program to recover half the costs, in accordance with the recommendation under Section 12.9 of Annexure 5(a).

 

  1. That Council provide a report on the potential for cost sharing for the beach scraping strategy.

 

  1. That Council receive further information on the historical reports on beach scraping and evidence of positive or negative impacts.

 

At the Ordinary Meeting of 8 April 2010, Council resolved:

 

10-203 Resolved:

 

1.   That Council endorse staff to prepare and lodge a funding application with the NSW Natural Disaster Resilience Grants Scheme by 16 April 2010 to seek funding to undertake a trial beach scraping episode at New Brighton Beach in accordance with Resolution 09-1159 and Section 12.9 of the technical report “Development of a Proposal and Environmental assessment of Beach Scraping – New Brighton and South Golden Beach”, as previously reported to Council.

 

2.   That in progressing towards a trial beach scraping episode for New Brighton Beach in accordance with resolution 09-1159, staff provide a report to Council prior to June 2010 on the approval status of the proposed beach scraping activity in accordance with Part 3 of Resolution 09-1159, so that Council may withdraw or maintain its funding application with NDRGS under consideration of the approval status and/or other project complexities.

 

3.   That subject to the success of the funding application lodged in accordance with Part 1 above, and completion of Part 2 above, Council allocate their required 1/3rd funding of $43,600 from the 2010/11 Local Growth Management Strategy budget (job no. 2605.062) to undertake the trial beach scraping project.

 

4.   That should Council be unsuccessful in its funding application to the Natural Disaster Resilience Grants Scheme, Council continue to seek funding through any other relevant state or federal funding programs in accordance with Resolution 09-1159.

 

On 12 August 2010, Council resolved:

 

10-612 Resolved:

 

1.   That Council note the Summary Report (Annexure 14) and endorse the Review of Environmental Factors [Appendix C, Annexure 14 #990879].

 

2.   That Council proceed with undertaking a trial beach scraping episode at New Brighton Beach subject to Council receiving by the 12 August 2010:

 

a)    final approval from NSW Department of Industry and Investment.

b)    offer of funding from the Natural Disaster Resilience Grants Scheme (NDRGS).

 

3    That if Council is successful with the NDRGS funding application, Council allocate an additional $29,700 from the 2010/11 Local Growth Management Strategy Budget (job no. 2605.062), in addition to $43,600 allocated in accordance with resolution 10-203 Part 3 (subject to success of NDGRS funding) for the trial beach scraping episode at New Brighton Beach.

 

4.   That subject to Part 1, 2 and 3 above, Council implement the trial beach scraping episode at New Brighton Beach as per Table 3 of this report [further described in Annexure 14] and as itemised as follows:

 

a)    Implement the biological monitoring program.

b)    Inform community of works via media release and notices.

c)    Engage ecologist to undertake daily inspections of works site to assess presence/absence of bird and/or turtle species.

d)    Engage coastal engineer to supervise first 2 days of scraping.

e)    Scrape the designated work site to a depth of approximately 0.2m to place approximately 8m3/m to 16m3/m of sand against the erosion escarpment at New Brighton Beach.

f)     Implement the physical survey program to assess dune volume change and beach profile change and response.

g)    Implement dune rehabilitation     

 

5.   That trial beach scraping works do not proceed beyond 30 September 2010 under recognition of potential for impact to migratory species.

 

6.   That Council receive a further report following any trial beach scraping episode at New Brighton Beach, analysing the biological and physical impacts, and the cost and logistic issues associated with the works.

 

In accordance with resolution 09-1159 (Part 5) and resolution 10-612 (Part 6), this report provides a summary of the biological and physical impacts, cost and logistic issues, including the potential for cost-sharing arrangements to fund any future works, associated with the Trial Beach Scraping Episode at New Brighton Beach.

 

Project Summary

 

In accordance with resolution 10-612, Council implemented the ‘Trial Beach Scraping Episode at New Brighton Beach, Byron Shire NSW’ in the latter half of 2010. This trial was conducted under the Natural Disaster Resilience Grants Scheme (through Emergency Management NSW) with funding from the State and Commonwealth Government ($87,200) as well as Council ($73,300, however Council’s funding contribution was $43,600 as per funding agreement).

 

As reported to Council on 12 August 2010 (Report No. 12.16.), the objectives of the trial were to:

1.       Reduce the severity of the immediate coastline hazard threat to infrastructure (roads and services) and private property along New Brighton Beach.

2.       Provide data to allow analysis to determine the impacts (positive and negative) of beach scraping so that Council may consider the viability of beach scraping over the short to medium term.

 

Noting that the proposed trial beach scraping would not remove the immediate coastline hazard threat to infrastructure and private property at New Brighton Beach, but is likely to modestly reduce the severity of this threat.

 

The trial involved seven components which are outlined in Table 1. (The rationale for each of these project components was reported to Council on 12 August 2010 (Report No. 12.16).

 

Table 1 Summary of the main components of the Trial Beach Scraping Episode

#

Component

Description

1.

Beach scraping Works

 

During September 2010, 12-16m3/m of sand was mechanically removed from between the high and low water mark (intertidal zone) of New Brighton Beach and deposited on the crest and seaward face of the foredune. Scrape depth was generally in the order of 0.2 - 0.3m (acknowledging normal operator inconsistency). The works took place over a 1.3km stretch of the beach.

2.

Coastal engineer supervision

 

In the early stages of the scraping works, a coastal engineer was engaged to supervise scrape depth, placement technique and scraped volume; ensuring the works followed the agreed methodology and best practice.

3.

Ecological supervision

 

During the scraping works, an ecologist was engaged to undertake beach inspections, monitor for the presence of threatened fauna and other significant ecological values, and recommend adaptive management strategies to minimise any potential impacts.

4.

Approvals process and community consultation

 

Further details on approvals in the ‘Statutory and Policy Compliance Implications’ section

 

Prior to the works, notices were placed at New Brighton General Store and South Golden Beach General Store, media releases were distributed before (20/08/10), during (03/09/10) and after the on-ground works (23/12/10).

 

As part of Dunecare week, the Coastal and Estuary Officer delivered a presentation on the beach scraping works (07/12/10).

5.

Biological monitoring and evaluation of the effect of the works on beach infauna

 

The National Marine Science Centre (Southern Cross University) was commissioned to monitor and report on the impact of the scraping works on the biodiversity and abundance of beach infauna (specifically on the macrofauna inhabiting the beach matrix of the intertidal region).

6.

Physical beach monitoring and analysis of the effect of the works on dune and beach profile and volume

 

Council staff conducted regular surveys of the beach and dune profile at New Brighton, before and after the scraping works. The Water Research Laboratory (University of New South Wales) was commissioned to analyse and evaluate the survey data with respect to the objectives of the scraping works.

7.

Dune rehabilitation works

a)             beach accesses

 

 

 

b)             revegetation

 

 

Eight beach accesses were re-shaped, stabilised and formalised by Council’s outdoor staff (re-shaped, fenced with post and wire and shadecloth).

 

The scraped foredune was re-vegetated by an EnviTE team and a private contractor, with some volunteer involvement. Re-vegetation methods involved planting native coastal species using locally sourced seed and cuttings.

 

Logistical issues and considerations

 

The logistical issues encountered and lessons learnt during the beach scraping trial are detailed in Table 2 below, which also details recommendations for consideration should Council determine to implement a beach scraping program in the future. This analysis excludes financial issues as they are detailed in the ‘Financial Implications’ section.

 

Table 2 Logistical issues encountered, lessons learnt and recommendations

#

Logistical Issue

Lessons learnt

Recommendation for any future works

1.

Seasonal factors and timing of works

a)

Beach building season

The optimum time to implement beach scraping works is during the ‘beach building season’.  In this region this occurs during the second half of the year (i.e. spring and summer).

 

Two relatively un-seasonal large easterly swells were experienced, in combination with high spring tides, immediately after completion of the beach scraping works. As beach scraping, by function, brings about a lowering of the intertidal beach profile, in this condition the impact of the two swell events on the back beach area was intensified and resulted in a significant loss of scraped sand at certain locations

Adopt September as the ideal month to undertake works due to the normally relatively low swell regime and somewhat suitable average beach building wind conditions. Noting however that unseasonal events may still occur.

b)

Impacts on migratory birds

To avoid negative impacts on migratory species such as turtles and birds, the beach scraping works were not considered appropriate for implementation during October through to early autumn.

No migratory species detected, timing of works minimised impacts.

Avoid the period October – April for implementation of works.

2.

Ecological Monitoring

a)

Intertidal macrofauna

The report on the ecological monitoring program (Smith et al, 2010) is at
Annexure 36(a).

Note the biological monitoring surveyed the intertidal zone only and did not include the beach area above the high water mark. Impacts to diversity and abundance of beach fauna inhabiting the upper beach zone (e.g. crabs etc) were not therefore assessed.

In summary, the report (Smith et al, 2011) found:

·         The study failed to detect clear impacts as a result of beach scraping on the biodiversity and assemblage patterns of beach infauna in the inter-tidal zone (macrofauna as retained on a 1mm2 sieve).

·         The primary reasons for the lack of impact were related to the high energy wave environment and natural levels of dynamism at New Brighton Beach, and that deposition of scraped sand did not cause major changes to beach granulometry (size distribution of sand grains).

Were a beach scraping program to be implemented occasionally/intermittently/annually  using a similar methodology to the trial (e.g. scrape depth, volume of sand scraped, timing of works), it is highly likely that impacts on inter-tidal macrofauna would be minimal, as such a monitoring program on the ecological impact in the intertidal zone would not be considered necessary.

As per statutory obligations, beach scraping works should be implemented with regard to the recommendations contained in a comprehensive Review of Environmental Factors.

b)

Ecological supervision

An ecologist was engaged to undertake morning beach inspections, monitor for the presence of threatened fauna and other significant ecological values, and recommend adaptive management strategies to minimise any potential impacts.

During the works, two sites of nesting Pardalotes were detected by the ecological supervisor. The ecologist recommended creating a buffer zone around the nesting site and, as a result, disturbance of the nesting site was minimised

Engage an ecological supervisor during the works to minimise impacts using an adaptive management approach.

3.

Availability of intertidal sand

 

The availability of sand for scraping in the intertidal zone is a function of the depth of sand to be scraped (which is generally a maximum of 0.2 -0.3 m as a result of biological considerations) and the width of the intertidal zone (as determined by beach slope and tidal regime at the time of scraping).

Tidal or beach slope factors may render it difficult to achieve the desired volume of sand per lineal meter of beach during one scraping ‘pass’ where the scrape depth is limited for physical and/or biological reasons.

 

Given that only one month in 12 (i.e. September) is most suitable for implementing the works, this limiting factor means that it would be difficult to scrape more than 12-20 m3/m (volume scraped during the trial) in any one year.

Additional time and cost is factored into the project to account for the variability in the availability of intertidal sand.

 

Any future program assumes that, on average, 12m3/m could be scraped in any one year.

 

4.

Physical Monitoring

a)

Physical Surveys

Council’s surveyors were engaged to conduct the beach and dune surveys. This was for a number of reasons, including cost, maintaining consistency of data collection and building internal capacity.

The 9 month survey was abandoned due to the survey team’s work program and consideration of tides and weather conditions. This was not a major issue as the 9 month survey was considered optional.

Engage Council surveyors to monitor the physical impacts of the works, allow for flexibility in the monitoring program.

Engage a suitably qualified consultant to analyse this data.

b)

Physical Impacts

The report analysing the physical impact of the beach scraping works (Rayner et al, 2012) is at Annexure 36(b).

In summary, the report (Rayner et al, 2012) found:

·         Beach scraping reduced the coastal hazard at New Brighton by increasing dune volumes, particularly in the upper dune (above 3.5m AHD), which increased the volume of sand available to meet the immediate storm demand hazard and also reduced the likelihood of overtopping.

·         Over the study period the scraped extent of the beach experienced an average increase of 20m3/m or a 9 per cent increase in volume of sand available to meet the immediate design storm demand. This volume is, however, 40 per cent of the volume required to remove assets such as The Esplanade from the immediate hazard zone. 

·         The sand removed from the intertidal zone had been naturally replenished, for the majority of the scraped extent, before the 3 month post-scrape survey.

·         Sand placement method could be improved to create a slightly higher and wider dune, subject to physical conditions scraping would be applicable as a long term measure to raise dune crests and prevent overtopping.

·         The scale of beach scraping is unlikely to be sufficient to fully offset coastal hazards and/or future climate change. Beach scraping at New Brighton causes minimal harm, but may not be a long term coastal management solution.

Implement a beach scraping program at New Brighton with the objective of maintaining, in the short term, a preferred dune profile, beach accessibility and recreational amenity; noting that the program is likely to result in a modest reduction in the severity of the immediate coastline hazard threat to infrastructure and private property at New Brighton, but will not remove this threat.

 

Any future beach scraping program should be informed by scientifically robust data and analysis, and should be underpinned by an adaptive management approach.

3.

Dune Rehabilitation Works

a)

Revegetation activities These included planting of cuttings (Beach Spinifex, Goat’s Foot, Beach bean, Pig Face) and direct seeding of species such as Coastal Acacia, Dianella.

Existing Beach Spinifex and cuttings were fertilised during rain events.

 

Revegetation efforts were highly successful for the Beach Spinifex plantings but largely unsuccessful for the other species.

 

Damage to plantings occurred after the works, this was most pronounced during the school holiday period, with plantings trampled and protective mulch deliberately burnt. Signage asking persons to keep off dunes was installed following the revegetation works.  A media release was released in relation to this issue.

Small program of revegetation works should be implemented with emphasis on stabilising foredune species, particularly Beach Spinifex.

 

Implement community and visitor education programs including signage.

b)

Beach access

Formal beach accesses stabilised, signage placed regarding keeping to beach accesses and staying off dunes.

 

Some trampling and damage to dune occurred with associated minor loss of sand evident. Media release distributed on this issue, requesting residents and visitors to stay off the dunes and keep to formal paths.

Implement education program, community consultation, signage and maintenance of beach access.

5.

Access arrangements for large equipment

 

The emergency vehicle access off North Head Road used as the access for heavy machinery

Access adequate for the works.  Machines were left on the beach scraped dune overnight to avoid the long journey back to the North Head Road Carpark.

 

Staff are not aware of any complaints being made regarding the machines being left on the beach.

Use North Head Road access; inform community that vehicles may be left on beach overnight.

 

Financial Implications (Trial Beach Scraping Episode)

 

The total budget allocated to the trial was $160,500. The income breakdown for the project is detailed at Table 3.

 

Table 3 Income breakdown for Trial Beach Scraping Episode at New Brighton Beach

#

Funding source

Amount

Resolution (where applicable)

1.

Emergency Management NSW

$ 87,200

 

2.

Council

$ 43,600

10-203, part 3

3.

Council

$ 29,700

10-612, part 3

4.

Total

$160,500

 

 

An approximate expenditure breakdown for the trial was reported to Council on 12 August 2010 (Report No. 12.16, Annexure 14).  These figures have been extracted and compared to the actual cost of each project component at Table 4.  Further financial analysis is provided below.

 

Table 4.     Estimated cost compared to actual expenditure for key project components of the Trial Beach Scraping Episode at New Brighton Beach

Item #

Project component

Approximate cost

Actual Cost (ex GST)

1.

Beach scraping works

 $58,000

 $ 63,050

2.

Coastal Engineer Supervision

 $3,000

 $   5,046

3.

Ecologist Supervision

 $3,000

 $   3,360

4.

Approvals and Community Consultation[1]

Not included in budget

 $   5,000

5.

Biological Monitoring

 $60,000

 $ 60,925

6.

Physical (Dune) Monitoring

 $27,500

 $ 21,775[2]

7.

Dune Rehabilitation Works

 $9,000

 $  8,001

8.

Total Cost

 $160,500

 $167,157

9.

Budget

 

 $160,500

10.

Balance

 

($   6,657)

 


Unit cost of the beach scraping works

At the Ordinary Meeting of 12 August 2010, the beach scraping proposal developed by Carley et al (2010) was tabled at Annexure 14.  The proposal assumed a unit cost for scraping works of $7 per m3, however it was recognised that this could range from $2 - $10 per m3.  Analysis of the costs associated with the trial beach scraping episode reveals that the unit cost was approximately $3 - $4 per m3[3], excluding physical and biological monitoring as well as supervision.  This unit cost is in the lower half of the range referred to by Carley et al (2010).

 

Beach scraping works overspend

The beach scraping works’ budget was $58,000 and this was overspent by approximately $5,000. The coastal engineer supervision was also overspent by $2,000.  The majority of this overspend was offset by savings made in the Physical (dune) Monitoring (Table 4, #6) as a result of abandoning the 9 month beach survey.

 

Although the over-spend is a relatively small amount, it reflects the difficulty in estimating costs for non-routine works that are subject to a wide range of natural variables, for example swell and tidal conditions which may affect the availability of intertidal sand and/or slow the progress of works on any given day.  For any future beach scraping works, it is recommended that a 10 per cent contingency be incorporated into the budget.

 

It was noted whilst the scraping works were being undertaken, that there may be opportunity to reduce the unit cost of the works further by employing a different configuration of earth moving equipment.  It is recommended that this is investigated further should beach scraping works be undertaken by Council in the future.

 

High monitoring costs

The expenditure summary reveals that apart from the scraping works themselves, the most costly components of the trial were the monitoring and evaluation programs (Table 4, items #5 and #6). This monitoring and evaluation expenditure was an important component of the trial and has provided invaluable information for the consideration of a future program of works.  It is unlikely, however, that this magnitude of expenditure on monitoring and evaluation would be required for any such future works, although this will be dependent upon statutory requirements.

 

Outcomes Achieved

 

In relation to project objectives, the Trial Beach Scraping Episode at New Brighton Beach achieved the following outcomes:

 

Objective 1: Reduce the severity of the immediate coastline hazard threat to infrastructure (roads and services) and private property along New Brighton Beach.

Noting that the proposed trial beach scraping would not remove the immediate coastline hazard threat to infrastructure and private property at New Brighton Beach, but is likely to modestly reduce the severity of this threat.

 

Outcome: The physical monitoring program concluded that the trial resulted in a reduction in the severity of the immediate coastline hazard threat along the 1.3 km stretch of New Brighton Beach. The scraping works resulted in increased dune volumes, particularly in the upper dune (above 3.5m AHD), which increased the volume of sand available to meet the immediate storm demand hazard. The increased upper dune volume also reduced the likelihood of wave overtopping. The average increase of 9 per cent available to meet the storm demand was modest in nature when compared to the design storm demand of 220m3/m. This volume is, however, 40 per cent of the additional volume required (based on the dune volume as assessed by WRL (2010) in 2009) to remove assets such as The Esplanade from the immediate hazard zone.

 

Objective 2: Provide data to allow analysis to determine the impacts (positive and negative) of beach scraping so that Council may consider the viability of beach scraping over the short to medium term.

Outcome: The trial increased the internal capacity of indoor staff regarding implementing beach scraping as a coastal hazard reduction strategy, resulting in a deeper understanding of the positive and negative impacts of beach scraping works and the capability of such works to reduce coastal hazard risks. The trial also increased the capacity of staff involved in the physical and ecological monitoring programs regarding developing and carrying out scientifically rigorous monitoring and the importance of using an adaptive management approach to such works. The capacity of outdoor staff was increased regarding the operational aspects of beach scraping and potential logistical issues as a result of working in a dynamic environment. A summary of the lessons learnt is at Table 2, these lessons have been used to develop a recommended future beach scraping program.

 

Other outcomes achieved:

 

In addition to achieving the above two objectives, the beach scraping trial achieved the following:

 

·         Maintenance of the reconstructed dune system at New Brighton Beach and increased beach amenity and improved beach access arrangements, particularly with reference to the damage incurred to the dune system as a result of the May 2009 event.

 

·         Community engagement and increased awareness of coastal management issues and strategies.

 

Recommendation for a future beach scraping program at New Brighton Beach

 

Given the outcomes that were achieved through the Trial Beach Scraping Episode at New Brighton Beach, it is recommended that a beach scraping program is implemented at New Brighton to maintain, in the short term, a preferred dune profile, volume, beach accessibility and recreational amenity; noting that the proposed beach scraping program would not remove the immediate coastline hazard threat to infrastructure and private property at New Brighton Beach, but is likely to modestly reduce the severity of this threat.

 

In order to achieve this objective, beach scraping works would ideally be scheduled during September, if and when physical conditions are appropriate, with approximately 12-20 m3/m scraped each episode. The figure of 12-20 m3/m has initially been nominated as it is based on the estimated minimum scrape volume that was achieved during the trial over a two week period; as such this figure seems realistic in terms of the availability of intertidal sand during a scraping episode over a four week period (this logistical consideration is discussed in Table 2). As per the recommendation in Rayner et al (2011), the beach scraping works would consider a placement methodology that created a slightly higher and wider dune in order to raise dune crests and hence reduce the risk of overtopping.

 

With reference to figures quoted in Carley et al (2010), 12-20 m3/m per episode, on a generally annual basis, is likely to allow for the acceleration of natural beach recovery processes at New Brighton and hence should maintain a preferred dune profile, volume, beach accessibility and recreational amenity in the short term. As, according to Carley et al (2010) an estimated scrape volume of 50m3/m initially is required to be scraped to ameliorate the present day erosion hazard from a design storm, which then needs to be maintained by an approximate 8m3/m per year, it can be appreciated that a scrape volume of 12-20 m3/m per episode is likely to provide only a modest reduction in the severity of the immediate coastline hazard threat to infrastructure and private property.

 

Given the dynamic and often unpredictable nature of the coastal environment, it is further recommended that each scraping episode is accompanied by a scientifically robust physical monitoring similar to that implemented during the trial and with guidance from the methodology recommended by Carley et al (2010). The physical monitoring would underpin an adaptive management approach to the beach scraping works, with data and analysis informing such issues as the viability of the works, scheduling of scraping episodes and the volume of sand to be scraped each episode.

 

Financial Implications (potential future beach scraping program)

 

Approximate budget per scraping episode:

An approximate budget has been calculated for the beach scraping works, at Table 5. This budget assumes the following:

·           that 12m3/m of sand will be scraped over 1.3 km and that the works will cost $4.04/m3 (figure derived from the trial),

·           that an ecological monitoring program will not be required but that an ecological supervisor will be engaged during the works,

·           that a coastal engineer supervisor will not be required but that assistance from an appropriately experienced professional from the Office of Environment and Heritage will be available and will provide advice to an experienced works overseer to ensure that an appropriate beach scraping methodology is followed, and

·           that project management costs, specifically the cost of engaging an appropriately qualified person to perform such tasks as prepare funding applications, liaise with government agencies, gain approvals, consult with the community, liaise with the Works Manager, oversee the monitoring program, are already budgeted for and are incorporated into existing staffing costs.

 

Given these assumptions are met, approximately $112,000 would be required to fund each beach scraping episode.

 

Table 5:     Approximate budget per scraping episode (12m3/m over 1.3 km at $4.04/m3)

#

Description

Approximate Cost

1.

Scraping works

$  63,000

2.

Ecological supervision

$    3,500

3.

Physical monitoring

$  20,000

4.

Approvals[4]

$    5,000

5.

Re-vegetation

$    5,000

 

Subtotal

$  96,500

 

10 per cent contingency

$    9,650

 

TOTAL

$ 106,150

 

Grant funding

Funding for 50 per cent of the cost of any future beach scraping works may be eligible under the Coastal Management Program administered by the Office of Environment and Heritage (OEH). Council is required to contribute at least 50 per cent of the funds required for any project under this program (excluding administration costs and contingencies which Council must fund 100 per cent).

 

The submission date for a grant under the Coastal Management Program for 2012/13 is
28 February 2012.  If a grant application were to be successful, these funds would need to be expended over the ensuing 12-18 months.

Given the current high work load in the Coastal and Estuary Work Program, largely as a result of preparing a coastal zone management plan and commitments to other funded projects, it is not possible, under current arrangements, for an additional project to be considered in 2012/13.  As such, if Council wishes to proceed with the beach scraping program in 2012/13 then Council would not only have to commit 50 per cent of program costs (plus contingency), which is approximately $57,900, but would need to fund the administration costs associated with project management. This is estimated to cost approximately $8,500 (grade 7.1 officer, employed for 2 days per week for 4 months), however may cost significantly more should engaging a suitably qualified officer part time for a short term prove difficult and necessitate engaging a consultant to manage the project.

 

Assuming Council was to be successful in applying for funds under the Coastal Management Program, and OEH provided approximately $48,250 to the program, the approximate cost to Council of undertaking a beach scraping episode in 2012/13 (including administration costs and contingency), would be approximately $66,400.

 

Council funding

There are currently no funds available under the 2012/13 budget to fund or part fund a beach scraping program.

 

Potential for cost sharing arrangements

If Council determine that a beach scraping program is to be implemented at New Brighton Beach, then a cost-sharing arrangement with those landowners deriving benefit from the works may be considered under section 495 of the Local Government Act 1993. This section provides that a council may make a ‘special rate’ for or towards meeting the cost of any works provided or undertaken, or proposed to be provided or undertaken, by the council within a part of the council’s area on those rate payers benefiting from the work.  This rate may be differential, where a higher rate applies to land directly benefiting from the works, with the amount of special rate determined according to Council’s assessment of the relationship between the cost or estimated cost of the work, and the degree of benefit afforded to the ratepayer by providing or undertaking the work. Council may apply for a single year increase or a multi-year increase (of between two and seven years).

 

In order to implement a special rate increase, Council would be required to comply with an extensive approvals process.  This process includes submitting an application to the Independent Pricing and Regulation Tribunal (IPART) for review, assessment and determination under powers delegated by the Minister for Local Government.  The application is to be submitted in the December before the financial year that the increase is proposed and in accordance with the Special Variation Guidelines (Division of Local Government, Department of Premier and Cabinet, 2011). IPART assess special variation applications against the following criteria:

·           demonstrated need for the rate increase

·           demonstrated community support for the special variation

·           reasonable impact on ratepayers

·           sustainable financial strategy consistent with the principles of intergenerational equity

·           productivity improvements achieved and planned, and

·           implementation of the Integrated Planning and Reporting framework

 

As part of the application, Council must demonstrate extensive community consultation and support for the proposed program of expenditure and the resulting special variation.

 

Given that Council has resolved not to put in a special rate increase for the year 2012/13 (res 11-1080), and the complexities and timing issues associated with developing and implementing a special rate increase, the earliest date at which a beach scraping program could be (part) funded under such an arrangement is September 2013/14.

 

As the implementation of a beach scraping program would also be highly difficult under current arrangements as a result of the high workload in the Coastal and Estuary Work Program, it is recommended that, should a beach scraping program be approved for New Brighton, then it commences in 2013/14, and that a further report is tabled for Council’s consideration, by no later than October 2012, canvassing options for funding the program including applying for a special rate increase.

 

Coastal Protection Service Charge

Note that section 496B(1) of the Local Government Act 1993 also provides for the making and levying of an annual coastal protection service charge (CPSC) on rateable land. However the levying of a CPSC is unlikely to be appropriate for a beach scraping program at New Brighton as a CPSC can only relate to a service to:

1.   maintain and repair coastal protection works, or

2.   manage the impacts of coastal protection works.

 

It may be difficult to establish that beach scraping works are coastal protection works, as the definition is “activities or works to reduce the impact of coastal hazards on land adjacent to tidal waters and includes seawalls, revetments, groynes and beach nourishment” (Local Government Act 1993).

 

In addition, a CPSC can only be levied on rateable land where either the current or previous landowner has voluntarily:

1.   constructed or contributed to the cost of constructing long-term coastal protection works, such           as seawalls, that benefit the land, or

2.   agreed to pay the charge relating to works that existed prior to the commencement of the Local       Government Act 1993 amendments that introduced this charge.

 

It is unlikely that landowners at New Brighton Beach fall into either of these two categories.

 

Statutory and Policy Compliance Implications

 

Approvals process for beach scraping works as per the Trial Beach Scraping Episode

NSW State and Environmental Planning Policy (Infrastructure) 2007 - works eligible as “Development permitted without consent”

 

Crown Lands Act 1989 - license required from the Land and Property Management Authority (LPMA) for the use and occupation of Crown Lands under the Crown Lands Act 1989, with concurrence approval required from the Department of Industry and Investment (fisheries).

 

NSW Environmental Planning and Assessment Act 1979 and relevant legislation: (NSW) Threatened Species Conservation Act 1995 and (Aus) Environmental Protection and Biodiversity Conservation Act 1999 – a Review of Environmental Factors required.

 

National Parks and Wildlife Act 1974 (Aboriginal heritage assessment) – determine if any registered objects or places of cultural value are located at the works site, commission a search of the Aboriginal Heritage Information Management System database, canvass and advertise to relevant groups to determine if any objections or issues to the works.  No objections or issues were raised in relation to the trial, this is likely to apply to an ongoing program.

 

Future considerations

If a beach scraping program were to be implemented over several years and involve multiple beach scraping episodes, it may be possible to obtain a Crown Lands licence to span the entirety of the program or that allows for the works on an ‘as needs’ basis.  A Review of Environmental Factors would also need to be prepared that accurately reviews the nature/extent of the program proposed.  The REF may also be prepared so that it applies to a program of works involving multiple beach scraping episodes.

 

 

 

Report No. 12.23.

PLANNING - Report on Expenditure of S94 funds Broken Head Hall at 356 Broken Head Road, Broken Head

Executive Manager:   Environment and Planning

File No:                        PLN350500 x 3670 #1181315

 

Principal Activity:

 

Allocation of Section 94 funds. 

Summary:

 

The purpose of this report is to seek a resolution of Council to allocate funds from the Broken Head Hall section 94 carparking fund to pay for the construction of a carpark at the hall. 

 

 

NOTE TO COUNCILLORS:

 

In accordance with the provisions of S375A of the Local Government Act 1993, a Division is to be called whenever a motion for a planning decision is put to the meeting, for the purpose of recording voting on planning matters.  Pursuant to clause 2(a) under the heading Matters to be Included in Minutes of Council Meetings of Council's adopted Code of Meeting Practice (as amended) a Division will be deemed to have been called by the mover and seconder of all motions relating to this report.

 

 

RECOMMENDATION:

 

1.       That subject to the satisfaction of point 2 that Council approve the expenditure of up to $42,729.39 from the S94 fund for costs incurred by the Broken Head Hall Committee Inc for the approval, design and construction of a 12 space car park.

 

2.       That prior to payment of any money authorised by point 1:

 

a)    a right of carriageway be established to benefit Byron Shire Council and the public as authorised by Byron Shire Council on the servient tenement being over the site of the carpark.  The right of carriageway shall conform to the requirements of item 1 of schedule 4A of the Conveyancing Act 1919. 

 

b)    a restrictive covenant in accordance with section 88B of the Conveyancing Act 1919 be imposed on the land to the effect that:

i)     The cost of maintenance of the carpark is the responsibility of the owner of the servient tenement; and

ii)    The carpark shall be maintained in good order. 

 

c)    the contract issued for the construction of the carpark shall conform to the requirements of Local Government Act 1993,  Part 7 of the Local Government Regulation 2005 and Council’s Policy No 2.6 Procurement And Purchasing.  A copy of the contract and documentation demonstrating compliance with the legislative requirements shall be provided to Council prior to the commencement of works. 

 

 

Attachments:

 

·       Letter from Broken Head Hall Committee #1132095 [1 page].............................................. Annexure 7(a)

·       CONFIDENTIAL Brief for legal advice #1146327 [5 pages]................................................ Annexure 7(b)

·       CONFIDENTIAL Marsdens Legal advice #1159493 [13 pages]........................................... Annexure 7(c)

 

Report

 

The purpose of this report is to seek authorisation for the expenditure of section 94 funds.  The authorisation is sought in terms of Clause 211 of the Local Government Regulation 2005.  This Clause is set out as follows: 

 

(1)     A council, or a person purporting to act on behalf of a council, must not incur a liability for the expenditure of money unless the council at the annual meeting held in accordance with subclause (2) or at a later ordinary meeting:

 

(a)  has approved the expenditure, and

 

(b)  has voted the money necessary to meet the expenditure.

 

(2)          A council must each year hold a meeting for the purpose of approving expenditure and voting money.

 

The Section 94 Plan -Broken Head was adopted by Council on 11 October 2005 and came into effect on 20 October 2005.  The purpose of the plan was to collect contributions from two developments identified in the Byron Rural Settlement Strategy 1998.  Both of these developments have been completed and all of the contributions collected.  The carpark was to be constructed by Community Infrastructure and the expenditure of these collected contributions was allocated in the 2010-11 budget.  The works did not proceed due to staff concerns about expending Council money on land that is not in the ownership of Council and the vote subsequently lapsed.  Council currently holds $42,729.39 for the purposes of carparking at Broken Head Hall. 

 

The Broken Head Hall committee prepared a development application DA 10.2010.584.1 for a carpark, disabled access and toilet facilities, replacement deck and minor building works.  This DA was approved on 12 January 2011.  On 24 August 2011 the hall committee wrote to Council stating it’s intention to build the carpark and seeking that the cost of the carpark be reimbursed from the section 94 fund, Annexure 7(a). 

 

Council’s section 94 officer wrote to the hall committee on 19 September 2011.  The purpose of the letter was to advise that Council’s section 94 officer was investigating options for the imposition of a public positive covenant on the land and potentially a charge on the land in order to ensure that assets funded by public monies remain available as a public facility in perpetuity.  The public positive covenant would enable the public to access the carpark and the charge would ensure the repayment of the cost of the construction of the carpark in the event of the sale of the land or removal of the public positive covenant.  Legal advice was sought on the ability to impose such covenants and charges with a view to utilising this as a standard mechanism to enable the flexible and secure expenditure of section 94 funds on land that is not in Council’s ownership. 

 

A copy of the brief for the advice and the legal advice is provided as a confidential Annexures 7(b) and 7(c). 

 

If Council wishes to discuss the confidential legal advice, it is recommended that Council resolve to move into confidential session. If that is the case, the motion could be along the lines:

         

1.       That pursuant to Section 10A(2)(g) of the Local Government Act, 1993, Council resolve into Confidential Session to discuss CONFIDENTAL Annexures 7(b) and 7(c). 

 

2.       That the reasons for closing the meeting to the public to further consider this item be that it contains advice concerning litigation, or advice that would otherwise be privileged from production in legal proceedings on the ground of legal professional privilege.

 

3.             That on balance it is considered that receipt and discussion of the matter in open Council would be contrary to the public interest, as it could compromise the position of Council in current or future litigation and present a risk to public funds.

 

Council has also written to the Division of Local Government to seek a determination if the expenditure of section 94 funds is a public private partnership (PPP) for the purposes of section 400B of the Local Governments Act 1993. 

 

If as expected the Division of Local Government advises Council that the expenditure of section 94 funds at the Broken Head Hall is not a PPP then it is proposed to reimburse the hall committee from the section 94 fund for the cost of the approvals process, design, and the construction of the carpark up to the amount of $42,729.39. 

 

If council resolves to proceed with funding the hall committee to construct the works in the contributions plan then the hall committee would have to conform to the requirements of the Local Government Act 1993,  Part 7 of the Local Government Regulation 2005 and Council’s Policy No 2.6 Procurement and Purchasing. 

 

Financial Implications

 

There should be no financial implications for Council as the $42,729.39 section 94 funds are 100% apportioned to new development and no matching funding from Council is required. 

 

Statutory and Policy Compliance Implications

 

A restriction on the title will be required to ensure that the works funded by section 94 are available to the public. 

 

Expenditure of these funds will ensure that Council complies with section 93E of the Environmental Planning and Assessment Act 1979. 

 

The appointment of a contractor and the pricing of the work for the construction of the carpark will have to conform to the requirements of the Local Government Act 1993, Part 7 of the Local Government Regulation 2005 and Council’s Policy No 2.6 Procurement and Purchasing. 

 

 

 

Report No. 12.24.

PLANNING - 10.2011.377.1 - Subdivision to create 11 lots and balance lot

Executive Manager:   Environment and Planning

File No:                        237920 #1187202

 

 

NOTE TO COUNCILLORS:

 

In accordance with the provisions of S375A of the Local Government Act 1993, a Division is to be called whenever a motion for a planning decision is put to the meeting, for the purpose of recording voting on planning matters.  Pursuant to clause 2(a) under the heading Matters to be Included in Minutes of Council Meetings of Council's adopted Code of Meeting Practice (as amended) a Division will be deemed to have been called by the mover and seconder of all motions relating to this report.

 

 

RECOMMENDATION:

 

That pursuant to Section 80 of the Environmental Planning & Assessment Act 1979, development application 10.2011.377.1 for subdivision to create eleven lots and balance lot, be granted consent subject to the conditions of consent in Annexure 30(b) (#1187216) of this report.

 

 

Attachments:

Site Map

 

·       Overall Layout Plan #1187208 [1 page]........................................................................... Annexure 30(a)

·       Consent Conditions #1187216 [12 pages]....................................................................... Annexure 30(b)

 


 

DA No:

10.2011.377.1

Proposal:

Subdivision to create eleven (11) lots and balance lot

Property description:

Lot 77 DP 1031773

Tristania Street Bangalow

Parcel No/s:

237920

Applicant:

Geolink Consulting Pty Ltd

Owner:

Picamore Pty Ltd

Zoning:

Zone No. 1(b1)- Agricultural Protection Zone / PART 2(a) - Residential Zone

Date received:

15 September 2011

Integrated Development:

Yes

Public notification or exhibition:

Level 2 advertising under DCP 17 – Public Notification and Exhibition of Development Applications

Exhibition period: 6/10/11 to 19/10/11

Submissions: For  = 0              Against  = 0

 

Other approvals (S68/138):

Not applicable

Planning Review Committee:

N/A

Delegation to determination:

Council - SEPP1 objection to Cl 11 BLEP

Issues:

·         SEPP1 objection to Cl 11 BLEP – concurrence granted

Summary:

The application proposes a subdivision to create the first stage of ‘Village Edge Estate’ residential subdivision at Ivory Curl Place and Parrot Tree Place in Bangalow.  The land to be developed is a component of recently rezoned, for residential user, land in Bangalow.

It is proposed to create 11 residential lots, and a residue lot, from an existing allotment that already has approved roads and infrastructure in place.

The proposal requires a SEPP1 objection to Clause 11 of Byron LEP and concurrence from the Director General Planning & Infrastructure NSW.  A SEPP1 objection was provided and concurrence was granted.

The proposed subdivision is consistent with all the relevant state and regional environmental planning instruments and with Byron LEP 1988 and the Byron DCP 2010 including Chapter 22 - Bangalow Urban Release Areas.

The proposed development is a suitable and economic use of the site, complies with relevant environmental planning provisions and is not likely to have a significant environmental impact.

The proposal is in the public interest as it will provide additional residential lots in an area of existing shortage.

 

The application is recommended for approval subject to conditions of consent.

 

 

1.         INTRODUCTION

 

1.1       History/Background

 

26.2010.2.1 Rezoning specific land Bangalow to 2(a) Ch 22 Area 7 - Completed 28/09/20211

 

1.2       Description of the site

 

The land is part of the Area 7 of Byron DCP 2010, Chapter 22 – Bangalow Urban Release Areas (see map 6 below).

 

The land is currently vacant with very little existing vegetation apart from the grass cover.

The majority of the infrastructure required for the proposed lots is already constructed, this being the penultimate stage of a staged subdivision.

 

 


 

1.3       Description of the proposed development

 

The application proposes to subdivide Lot 77 DP 1031773, land that is part of the Area 7 of Byron DCP 2010, Chapter 22 – Bangalow Urban Release Areas (see map 6 above), into 11 residential lots and 1 residual lot.  The land is currently vacant with very little existing vegetation apart from the grass cover.

The majority of the infrastructure required for the proposed lots is already constructed, this being the penultimate stage of a staged subdivision.

 

Lot #

Street frontage

Lot size (m2)

1

Ivory Curl Place

870

2

Ivory Curl Place

925

3

Ivory Curl Place

970

4

Ivory Curl Place

732

5

Ivory Curl Place

609

6

Ivory Curl Place

605

7

Parrot Tree Place

748

8

Parrot Tree Place

621

9

Parrot Tree Place

611

10

Parrot Tree Place

649

11

Parrot Tree Place

652

12 – Residue lot

Parrot Tree Place

5.1 hectares

 

 


 

2.         SUMMARY OF GOVERNMENT/EXTERNAL REFERRALS

 

 

Summary of Issues

Government Authorities

NSW Planning and Infrastructure

NSW Office of Water

ARTC – NSW Rail

 

NSW Planning

 

I refer to your letter received 26 October 2011 requesting the Director-General’s concurrence in the above matter

Following consideration of the application, concurrence has been granted to vary the 40 hectare development standard for the 1(b1) zone contained in clause 11(1) of Byron LEP 1988 to permit the subdivision on the above land.

 

Concurrence was granted in this instance for the following reasons:

 

(i)             The majority of the lot is zoned 2(a) Residential and is clearly intended for residential purposes;

 

(ii)           The rural land is unable to maintain large scale agricultural activities.  The small scale of activities that could occur on the rural land will not be undermined by the subdivision.

 

NSW Office of Water

 

Re: Integrated Development Referral — General Terms of Approval

DA 10.2011.377.1 - Subdivision to Create Eleven Lots and Balance Lot Tristania Street, BANGALOW

I refer to your recent letter regarding an Integrated Development Application (DA) proposal for the subject property. Attached, please find the NSW Office of Water’s General Terms of Approval (GTA) for works requiring a Controlled Activity Approval under the Water Management Act 2000 (WM Act), as detailed in the subject DA.

Please note Council’s statutory obligations under section 91A(3) of the Environmental Planning and Assessment Act, 1979 (EPA Act) which requires a consent, granted by a consent authority, to be consistent with the GTA proposed to be granted by the approval body.

If the proposed development is approved by Council, the NSW Office of Water requests that these GTA be included (in their entirety) in Council’s development consent. Please also note the following:

·         The NSW Office of Water should be notified if any plans or documents are amended and these amendments significantly change the proposed development or result in additional works on waterfront land (being land in or within 40 metres from top of highest bank of a watercourse, foreshore, or lake). Once notified, the NSW Office of Water will ascertain if the amended plans require review or variation/s to the OTA. This requirement applies even if the proposed works are part of Council’s proposed consent conditions and do not appear in the original documentation.

·         The NSW Office of Water should be notified if Council receives an application to modify the consent conditions. Failure to notify may render the consent invalid.

·         The NSW Office of Water requests notification of any legal challenge to the consent.

Under section 91A(6) of the EPA Act, Council must provide the NSW Office of Water with a copy of any determination/s including refusals.

As the controlled activity or works on waterfront land cannot commence before the applicant applies for and obtains a Controlled Activity Approval, the NSW Office of Water recommends that the following condition be included in the development consent:

“The Construction Certificate will not be issued over any part of the site requiring a Controlled Activity Approval until a copy of the Approval has been provided to Council”.

The attached GTA are not the Controlled Activity Approval. The applicant must apply (to the NSW Office of Water) for a Controlled Activity Approval after consent has been issued by Council and before the commencement of any works on waterfront land.

Finalisation of a Controlled Activity Approval can take up to 8 weeks from the date the NSW Office of Water receives all documentation (to its satisfaction). Applicants must complete and submit (to the undersigned) an application form together with any required plans, documents, the appropriate fee and security (ie bond, if applicable) and proof of Council’s development consent.

Application forms for the Controlled Activity Approval are available from the undersigned or from the NSW Office of Water’s website www.water.nsw.gov.au Water licensing Approvals Controlled activities

General Terms of Approval — for works requiring a Controlled Activity Approval under the Water Management Act 2000

Our reference

30 ERM2011/1006

File No:

9055319

Site Address

Tristania Street, Bangalow

DA Number

10.2011.377.1

LGA

Byron Shire Council

Number

Condition

Plans, standards and guidelines

1.       

These General Terms of Approval (GTA) only apply to the controlled activities described in the plans and associated documentation relating to DA 10.2011.377.1 and provided by Council.

Any amendments or modifications to the proposed controlled activities may render these GTA invalid. If the proposed controlled activities are amended or modified the NSW Office of Water must be notified to determine if any variations to these GTA will be required.

2.       

Prior to the commencement of any controlled activity (works) on waterfront land, the consent holder must obtain a Controlled Activity Approval (CM) under the Water Management Act from the NSW Office of Water. Waterfront land for the purposes of this DA is land and material in or within 40 metres of the top of the bank or shore of the river identified.

3.       

The consent holder must prepare or commission the preparation of:

(i.)          Vegetation Management Plan

(ii.)        Erosion and Sediment Control Plan

(iii.)       Soil and Water management Plan

4.       

All plans must be prepared by a suitably qualified person and submitted to the NSW Office of Water for approval prior to any controlled activity commencing. The plans must be prepared in accordance with the NSW Office of Waters guidelines located at www.water.nsw.gov.auMaterLicensing/Approvals/default.aspx

(i)            Vegetation Management Plans

(ii)          Riparian Corridors

5.       

The consent holder must (i) carry out any controlled activity in accordance with approved plans and (N) construct and/or implement any controlled activity by or under the direct supervision of a suitably qualified professional and (Ni) when required, provide a certificate of completion to the NSW Office of Water.

Rehabilitation and maintenance

6.       

The consent holder must carry out a maintenance period of two (2) years after practical completion of all controlled activities, rehabilitation and vegetation management in accordance with a plan approved by the NSW Office of Water

7.       

The consent holder must reinstate waterfront land affected by the carrying out of any controlled activity in accordance with a plan or design approved by the NSW Office of Water.

Reporting Requirements

8.       

N/A

Security deposits

9.       

N/A

Access-ways

10.   

N/A

11.   

N/A

Bridge, causeway, culverts and crossing

12.   

N/A

13.   

N/A

Disposal

14.   

The consent holder must ensure that no materials or cleared vegetation that may (i) obstruct flow, (H) wash into the water body, or (Hi) cause damage to river banks; are left on waterfront land other than in accordance with a plan approved by the NSW Office of Water.

Drainage and Stormwater

15.   

N/A

16.   

The consent holder must stabilise drain discharge points to prevent erosion in accordance with a plan approved by the NSW Office of Water.

Erosion control

17.   

N/A

Excavation

18.   

The consent holder must ensure that no excavation is undertaken on waterfront land other than in accordance with a plan approved by the NSW Office of Water.

19.   

N/A

Maintaining river

20.   

The consent holder must ensure that (i) river diversion, realignment or alteration does not result from any controlled activity work and (U) bank control or protection works maintain the existing dyer hydraulic and geomorphic functions, and (Ui) bed control structures do not result in ver degradation other than in accordance with a plan approved by the NSW Office of Water.

21.   

N/A

River bed and bank protection

22.   

N/A

23.   

The consent holder must establish a riparian corridor along Maori Creek in accordance with a plan approved by the NSW Office of Water.

Plans, standards and guidelines

24.

N/A

25.

N/A

26.

N/A

27.

N/A

END OF CONDITIONS

 

Australian Rail & Track Corporation

 

The subject land adjoins the North Coast Rail corridor, whilst the rail service was terminated in 2004 there is still a possibility of the rail line being re-opened in the future, subsequently the application was referred to ARTC on 9 November 2011.  The following is their reply:

 

RE: Development Application 10.2011.377.1
Tristania Street, Byron Bay — Lot 77 DP 1031773
Subdivision to Create Eleven (11) Lots and Balance Lot

Thank you for your correspondence dated 9 November 2011 regarding the abovementioned Development Application.


ARTC manages the Country Regional Network on behalf of the Country Rail Infrastructure Authority (CRIA). As such, ARTC is responding on behalf of CRIA.


It should be noted that the Casino to Murwillumbah rail line which is adjacent to the proposed development currently has services suspended and has not been officially closed to rail operations. As such, any development near the rail corridor must be assessed on the basis that services could resume in the future.


I subsequently advise that Council should consider the State Environmental Planning Policy (SEPP) (Infrastructure) 2007 and Development Near Rail Corridors And Busy Roads Interim Guideline, published in the NSW Government Gazette No.156 on 19 December 2008 when determining this application.


ARTC requests that, due to the nearby rail corridor, Council considers noise and vibration, stormwater and fencing in its assessment of the application, as follows;


Noise and Vibration
ARTC requests that the Council consider the requirements of Development Near Rail Corridors And Busy Roads Interim Guideline and whether any noise sensitive uses within the development are likely to be adversely affected by rail noise or vibration.


A copy of the guidelines can be found by following the below link:
httD:/Jwww.v!enninp.nsw.aov. au/y!anninpsvstem/pdf/puide infra devtrailroadcorrkiors inteflm.pdf

 

Stormwater
ARTC and subsequently CRIA wants to ensure that stormwater from the development, does not affect the rail corridor and requests that Council impose as a condition of consent that the developer will ensure that stormwater does not affect the rail corridor, such as:


1. Prior to a Construction Certificate being issued, the applicant must submit details of stormwater disposal to Council for approval. The flow of stormwater toward the rail corridor must not be increased by the proposed development. All approved details for the disposal of stormwater and drainage are to be implemented in the development.


Fencing
The security of fencing along the rail corridor is essential to prevent unauthorised entry. ARTC requests that Council impose a condition of consent requiring that the boundary of the site with the rail corridor be fenced in a 1 .8m mesh fence if applicable.

 

Relevant consent conditions have been placed.

 

3.         SECTION 79C – MATTERS FOR CONSIDERATION – DISCUSSION OF ISSUES

 

Having regard for the matters for consideration detailed in Section 79C(1) of the Environmental Planning & Assessment Act 1979, the following is a summary of the evaluation of the issues.

 

3.1.      STATE/REGIONAL PLANNING POLICIES AND INSTRUMENTS

 

Requirement

Requirement

Proposed

Complies

SEPP1 – Development standards

Provides flexibility in the application of planning controls operating by virtue of development standards in circumstances where strict compliance with those standards would, in any particular case, be unreasonable or unnecessary or tend to hinder the attainment of the objects specified in section 5(a)(i) and (ii) of the Act.

 

The proposed subdivision does not comply with minimum lot size requirements under Clause 11 of Byron LEP.

A SEPP 1 Objection has been submitted by the applicant and is assessed in Section 3.1a of this report

Yes

 

See discussion below

SEPP55 – Remediation of land

Council must:

(a)     considered whether the land is contaminated, and

(b)     if the land is contaminated, if the land is suitable in its contaminated state or after remediation, and

(c)     be satisfied the land will be remediated before the land is used.

 

Council has determined that the land is considered not contaminated and is suitable for the intended use. No further information required.

Yes

SEPP North Coast Regional Environmental Plan

Clause 43 –

(1)  The council shall not grant consent to development for residential purposes unless:

(a)     it is satisfied that the density of the dwellings have been maximised without adversely affecting the environmental features of the land,

(b)     it is satisfied that the proposed road widths are not excessive for the function of the road,

(c)     it is satisfied that, where development involves the long term residential use of caravan parks, the normal criteria for the location of dwellings such as access to services and physical suitability of land have been met,

(d)     it is satisfied that the road network has been designed so as to encourage the use of public transport and minimise the use of private motor vehicles, and

(e)     it is satisfied that site erosion will be minimised in accordance with sedimentation and erosion management plans.

 

Most of the site has been earmarked for residential development for many years and was recently rezoned as Area 7 in the Bangalow Urban Release Areas.

The proposed subdivision is the penultimate stage of an existing residential subdivision and generally meets the provisions of Clause 43.

 

Yes

Building Code of Australia

The proposal must be capable of compliance with the structural and safety requirements of the Building Code of Australia.

The proposed subdivision will provide for adequate setbacks from existing buildings to the proposed lot boundaries.

Yes

* Non-complying issues discussed below

 

3.1a - State/Regional Planning Policies and instruments - Issues

 

SEPP1 Objection to Clause 11 of Byron LEP

 

State Environmental Planning Policy No. 1

The applicant seeks a variation to the development standard applying to the minimum allotment size for subdivision within the 1(b1) Agricultural Protection Zone.  Clause 11 of Byron LEP 1988 provides that Council shall not consent to the subdivision of land within this zone unless a minimum allotment size of 40 hectares is maintained.   The proposed residue lot will contain land within Zone 1(b1) with an area less than 40 hectares.  A written objection was submitted with the development application arguing that compliance with the minimum 40 hectare lot size development standard is unreasonable and unnecessary as the existing allotment containing Zone 1(b1) land is already below 40 hectares.

 

Strict compliance with the 40 hectare standard is not warranted in the circumstances of the case.  There will be no reduction in viable agricultural land as a result of the subdivision.  The land is part of the Area 7 of Byron DCP 2010, Chapter 22 – Bangalow Urban Release Areas (see map page 6), and the proposal is consistent with future development of that land.

 

The application does not raise any matters of state or regional significance. No benefit is to be gained from maintaining the development standard in this case.

 

The application was referred to NSW Planning and Infrastructure for the Director Generals concurrence.  Concurrence was granted.

 

Considering the land subject to the proposed residential lots is zoned for residential use, compliance with the development standard is considered unreasonable, unnecessary and not practical in the circumstances of this case and the SEPP1 objection is therefore supported.

 

3.2.      BYRON LOCAL ENVIRONMENTAL PLAN 1988

 

Zone: Zone No. 1(b1) - Agricultural Protection Zone / PART 2(a) - Residential Zone

Definition: Subdivision

 

LEP Requirement

Summary of Requirement

Proposed

Complies

 

Meets Zone 2(a) objectives

 

encourage a range of housing types

 

Urban subdivision

 

Yes

Objectives of the 2(a) Residential Zone

 

(a)  to make provision for certain suitable lands, both in existing urban areas and new release areas, to be used for the purposes of housing and associated neighbourhood facilities of high amenity and accessibility;

The proposed final stage to an existing residential subdivision is located generally within existing residential development.  The site is close, within walking/cycling distance, to the Bangalow town centre.  Neighbourhood facilities that are accessible to the site currently exist within the locality.

Yes

 

(b)  to encourage a range of housing types in appropriate locations;

The proposed allotment layout is such that it will encourage a range of housing types in an appropriate location.

Yes

 

(c)  to enable development for purposes other than residential purposes only if it is compatible with the character of the living area and has a domestic scale and character; and

No development is proposed that is not of a residential purpose.

Yes

 

(d)  to control by means of a development control plan the location, form, character and density of permissible development.

The location, form, character and density of subdivision development in the locality, is consistent with the provisions of Byron Development Control Plan 2002.

Yes

ZONE No. 1(b1)(AGRICULTURAL PROTECTION ZONE)

 

·         preserve higher quality agricultural land;

·         prevent fragmentation of rural holdings;

·         enable agricultural support facilities that do not reduce production potential;

·         restrict traffic generating uses along main roads; and

·         establish buffer zones.

 

The land area currently zoned 1(b1) that is currently contained within the will still remain within one lot.

The subdivision does not fragment rural land.

The rural land is unable to maintain large scale agricultural activities.  The small scale of activities that could occur on the rural land will not be undermined by the subdivision.

Adjacent properties to the north and east are existing residential. Land to the south of Parrot Tree Place has been rezoned as 2a and it is understood will soon be the subject of DA for residential subdivision. No land use conflict is expected as a result of this proposed development.

Yes

Clause 10 - Subdivision generally

A person shall not subdivide land to which this plan applies except with the consent of the council.

Development consent has been sought.

Yes

 

However, consent is not required for a subdivision under the Strata Schemes (Freehold Development) Act 1973 of a lawfully erected building on land within Zone No 2(a), 2(t), 2(v), 3(a), 4(a) or 7(f2).

Strata subdivision is not proposed.

Yes

 

Where land is zoned for the purpose of a proposed new road, the council shall not consent to a subdivision of land of which the proposed road forms part unless the subdivision makes provision for the opening of a road in reasonable conformity with the proposed road. 

The land is not zoned for the purpose of a proposed new road.

Yes

Clause 11  Subdivision in rural areas for agriculture, etc

Rural 1(b1) Agricultural Protection Zone

Minimum lot size = 40ha

The proposed subdivision is not in accordance with Clause 11 as it proposes a lot below the minimum lot size development standard i.e. 16,650m2 is within zone 1(b1).

No

(see Section 3.1a, SEPP1 objection)

Clause 24 - Development of flood liable land

Council must be satisfied that:

-        flow characteristics of flood waters are not restricted;

-        the level of flooding is not increased;

-        any building or work is capable of withstanding flooding;

-        the building is adequately flood proofed; and

-        adequate arrangements are made for access to the building or work during a flood

 

The applicant provided a ‘Detailed Flood Study Report’, prepared by MRG Water Consulting Pty Ltd dated March 2011.

The study shows that only a small portion at the rear of proposed lot 3 is subject to inundation in the 1 in 100 year event and a small section at the rear of lots 2 & 3 is inundated in the PMF and generally classed as Low Hazard.

Minimum floor levels will be required for lots 2 & 3.

Yes

45 Provision of Services

 

Prior adequate arrangements required for the provision of sewerage, drainage and water services to the land.

 

Council is satisfied all services are available to the proposed lots.

Yes

* Non-complying issues discussed below

 

Byron Local Environmental Plan 1988- Issues

Clause 24 – Development on flood liable land

 

The site is not shown to be flood liable on Council’s GIS. A natural watercourse, known as tributary of Maori Creek, bounds part of the subject site.

 

A flood study has been submitted as part of the application. The study was prepared by MRG Water Consulting Pty Ltd and is a study of Byron Creek, Bangalow with a detailed study of the Maori Creek tributary which abuts proposed lots 1 to 3 of this application.

 

The study appears to have been prepared in accordance with accepted Engineering Practice using a RAFTS hydrological model, contour information and some detailed survey information. The submitted flood investigation is considered satisfactory.

 

The flood assessment is consistent with Council’s climate change policy and has included an additional 30% increase in rainfall intensity and volume to account for potential future climate change.

 

The study shows that only a small portion at the rear of proposed lot 3 is subject to inundation in the 1 in 100 year event and a small section at the rear of lots 2 & 3 is inundated in the PMF and generally classed as Low Hazard.

 

Minimum floor levels will be required for lots 2 & 3.

 

Draft EPI that is or has been placed on public exhibition and details of which have been notified to the consent authority - Issues

 

N/A

 

3.3       DEVELOPMENT CONTROL PLANS

 

Chapter 1 Part B – Subdivision

 

Development Control Requirements

DCP Requirement

Proposed

Compliance

 

B2.3 - Site Design

The subdivision must take into account all natural and human – made aspects of the site to be developed.

The site contains moderately sloping land. There is an intermittent creek along the western boundary of proposed lots 1, 2, 3 and 12 the NSW Office of Water has issued GTAs to be addressed prior to the issue of a Controlled Activity Approval. The proposed house sites are located within cleared areas of the site that have satisfactory slopes and good solar access.

Yes

B2.4 - Climate Control

The subdivision must take into consideration wind direction and vegetation types and location.

Refer to comments above.

Yes

B2.5 - Aspect

The subdivision must take into consideration solar access.

The layout of the proposed allotments have considered solar access. A dwelling envelope can be accommodated that includes good north-east solar access on each residential lot.

Yes

B4.5 – Stormwater Drainage

Facilitate effective drainage provision and management.

Stormwater infrastructure exists for the subdivision. Any upgrading will be undertaken as part of the construction Certificate.

 

Yes

B2.7 – Tree Preservation

The subdivision layout must encourage retention of existing trees. 

The land is mostly cleared with very little vegetation other than the grass cover. The proposed residential allotments can be accommodated with little or no tree removal.

Yes

B2.8 - Landscaping

The subdivision should take into consideration landscaping and Council should impose landscaping requirements where necessary.

Contributions have been levied in accordance with Council’s Section 94 Plan for provision of open space.

Yes

B3.2, 3.3 & 3.4 – Roads

The subdivision must take into consideration road design.

Road infrastructure already in place.

The development is second stage of 3.

Yes

B3.5 – Public Open Space

Subdivisions should form part of a pedestrian/cycleway network which connects the subdivision with other facilities including public open space areas (It is Council’s responsibility to establish to location of pedestrian/cycleway/public open areas using S.94 Contributions)

The application proposes a footpath/bike way on the northern side of Parrot Tree Place. The DCP requires a path along Ivory Curl as well. Can be conditioned.

Yes

B3.6 – Lot Size

Subdivision lot sizes are to comply with Part B5.1 of DCP 2002.

The proposal meets the requirements of Part B5.1. Refer to comments below.

Yes

B3.7 – Lot Frontage

The subdivision must take into consideration the orientation of each lot and its ability to provide a suitable house site with good aspect, useable private open space and adequate vehicle access.

The proposal meets the requirements of Part B5 of DCP 2002. Refer to comments below.

Yes

B5.1 – Lot Size

General lot - 600 m2

8 general lots are proposed with areas of between 605 m2 & 970m2.

Yes

 

Corner lot - 650 m2

2 corner lots are proposed with an area of 732m2 & 748m2.

Yes

 

Hatchet-shaped lot - 800 m2 (excluding access handle)

No hatchet shaped lots are proposed.

N/A

 

Hatchet-shaped lot adjacent to public reserve - 650 m2 (excluding access handle)

No hatchet shaped lots are proposed.

N/A

 

Fan-shaped lot - 650 m2 (minimum frontage 7m)

No fan shaped lots are proposed.

N/A

B5.2 - Allotment Layout

Where possible lots should be orientated to provide the long axis within the range N20oW to N30oE or E20oN to E30oS.

The proposed allotments either meet this requirement or can contain nominal building envelopes that meet this requirement.

Yes

 

Where possible, lots must be rectangular rather than splay shaped to maximise the opportunity for energy efficient housing.

The proposed residential allotments generally meet this requirement.

Yes

 

Lots must be staggered and landscaped to achieve maximum solar access and to create interest in the streetscape.

The land is virtually clear of vegetation. Landscaping can be conditioned.

Solar access is discussed above.

Yes

 

Lots and the associated vehicular and pedestrian access ways must be configured to provide convenient access to public open space areas and community facilities.

The design does not restrict access to public open space areas and community facilities.

Yes

 

Vegetation which adds significantly to the visual amenity of the area of the land must be preserved where possible.

Refer to comments above.

Yes

 

Lot layout and pedestrian accessway networks are to maximise the opportunities for observation of buildings, spaces and activities by residents, passing motorists and pedestrians.  Double street frontages (ie. front and rear) are to be avoided and pedestrian accessways are to run largely along public spaces (including roads and open spaces).

The proposal does not compromise this requirement.

Yes

 

Subdivision proposals in the urban areas of the Shire are to have regard to the possible environmental constraints that may affect any particular site.

The areas of the site in which the proposed residential allotments are located are not significantly constrained.

Yes

 

Where lands are identified as containing or adjoining bushland or contain or adjoin lands containing endangered flora and fauna species, development proposals are to be accompanied by flora and fauna assessments prepared by suitably qualified persons.

The land does not contain or adjoin lands containing endangered flora and fauna species. An ecological assessment and 7 Part Test is not required.

 

 

Yes

 

Development proposals which involve the development of land in close proximity to watercourses or other areas of possible inundation, are to be accompanied by a hydrologic study submitted by an appropriately qualified person to demonstrate that the proposal or any future development will not interfere with the natural flowpath or be subject to flooding.

Controlled Activity Approval from NSW Office of Water required prior to CC.

Condition required.

Yes

 

Lots must be designed to allow the construction of a building or carriageway with a maximum cut or fill of 1m from natural ground level whilst not impeding the flow of waters.

The slope of the site allows the design to meet this requirement.

Yes

 

Lands identified as having moderate or high bushfire hazard must be accompanied by a fire management plan to adequately minimise risk.

The land is not identified as bushfire prone.

Yes

B5.3 – Allotment Design

Lots must be able to accommodate a building envelope with minimum dimensions 12 metres by 15 metres.

Each lot is capable of containing a building envelope of these dimensions.

Yes

 

Building envelopes must be sited to avoid site constraints and take advantage of site opportunities.

The design meets this requirement.

Yes

 

Lots must be designed to maximise useable areas of the site and have regard to the topography.

The design meets this requirement.

Yes

 

Hatchet-shaped lots must have a minimum frontage of 5m (ie, 3m driveway and provision for services, landscaping etc).  This may translate as 3m each if reciprocal rights of carriageway provide shared access, but no more than 2 lots are to be accessed in this way (ie 4m driveway and provision for services, landscaping etc.).

No hatchet shaped lots are proposed within the subdivision.

Yes

 

Landscaping of the access handle of hatchet-shaped lots is required.  A landscaping plan must be submitted with the development application for subdivision - refer to Part H of this Development Control Plan for details.

No hatchet shaped lots are proposed within the subdivision.

Yes

Development Control Plan 2010 – Chapter 1 Part N Stormwater Management

Part N – Stormwater Management

Stormwater drainage can be dealt with via conditions of consent.

Development Control Plan 2010 - Chapter 22 - Bangalow Urban Release Areas

Structure Plan for Area 7

The proposed subdivision is located within Area 7 of DCP 2010 Chapter 22. This Chapter of the DCP provides controls and guidelines for the future form of development of the Bangalow Urban Release Areas. The Structure Plan nominates indicative road links, indicative shared cycleway and footpath links, landscape buffers, rehabilitation areas, indicative stormwater treatment areas and large lot residential areas.

The proposed subdivision creates eleven new residential allotments within the north-western corner of Area 7, as shown on the Structure Plan. All of these allotments are consistent with the elements provided on the Structure Plan. The residual allotment that is to be created is of sufficient size and shape to accommodate future subdivision, should their land use zones allow. The residual allotment is eligible to have a single dwelling-house constructed upon it and sufficient area is available to allow such construction without conflicting with the provisions of the Structure Plan.

Subdivision Standards

Development Control Provision

Development Control Requirement

Proposed

Compliance

3.1 - Residential Densities

·     Standard Residential Precincts: 600m² Lots.  Land identified as being least constrained and is to be characterised by smaller residential lots.  Parts of the development of this land may include dual occupancy and “non-standard” residential allotments such as “mews allotments”. 

·     Large Lot Residential Precinct (Area 2): 800m2 lots.  This land is constrained by slope and is to be characterised by larger lots.  Development applications for subdivision in this area should nominate building envelopes designed to minimise cut and fill on the site.

·     Medium Density Residential Precincts: 300m2 to 400m2 Lots.  Certain land within Area 4 North and South and Area 7 has been identified as suitable for medium density development.  In Area 4 North the minimum lot size is 400m2 and in Area 4 South and Area 7 the minimum lot size is 300m2.

The minimum lot size is 600m2.

Yes

3.2 – Lot Design

Objectives

·     To ensure that residential lots are capable of accommodating a range of housing types which provide pleasant streetscapes, maximise energy efficiency and mitigate environmental impacts.

·     The design and orientation of all residential lots within the Bangalow Urban Release Areas is to be undertaken in accordance with SEDA’s Solar Access for Lots (SAL) – Guidelines for Residential Subdivision in NSW

A SEDA assessment has not been undertaken as the layout and positioning of lots is dictated by the existing road network and provision of infrastructure.

 

All proposed lots are consistent with the element objectives.

Yes

·     Any development application for residential subdivision (not including Strata Title subdivision) within the Bangalow Urban Release Areas is to provide detail of compliance with Steps 1-6 in the SEDA guideline.

As above

Yes

·     A detailed geotechnical report is to be provided with each development application for subdivision of land with a slope greater than 15%.  This report is to make recommendations with respect to construction methods and dwelling envelopes.

All of the residential allotments being created are within slopes less than 15%. The residual allotment has areas available for building a dwelling-house that are within slopes of less than 15%.

Yes

·     Where the slope of the land is greater than 25%, concept details of proposed lots, extent of cut and fill, roads and accesses are to be provided.  Building envelopes must be identified.  This may need to be controlled by restrictions on the titles of individual lots.

As above.

Yes

3.3 – Buffers and Environmental Corridors

a.  Environmental Buffers, Visual Buffers and Riparian Corridors must be established in accordance with the Structure Map;

The proposed subdivision is in accordance with the structure map.  No buffers or riparian corridors are required as part of this subdivision proposal.

Yes

b.  All planting is to be of species indigenous to the site or local area in accordance with Chapter 1 Part H – Landscaping;

A condition has been included to require a landscape plan to be prepared in accordance with DCP 2010.

Yes

c.  The Visual Buffer should consist of a screen of shrubs and/or trees.  Trees must be selected with varying mature heights as appropriate to achieve the required visual barrier between existing and proposed development while not unduly restricting solar access to buildings and private open space. The buffer area must be established as an integral part of the development of land adjoining that buffer area at no cost to Council;

 

No buffers or riparian corridors are required as part of this subdivision proposal.

Yes

d.  Environmental Buffers and Riparian Corridors will be subject to the following requirements:

·  The corridor or buffer area must be established as an integral part of the development of land adjoining that corridor at no cost to Council;

·  An outline of a Vegetation Rehabilitation and Management Plan for the corridor must be prepared and submitted with the relevant development application.  Planting and maintenance details are to be submitted as part of this material;

·  Installation and maintenance of erosion and sedimentation controls;

·  Weed eradication and control; and

No buffers or riparian corridors are required as part of this subdivision proposal.

Yes

e.  Protective fencing is to be erected around individual and vegetation clusters to limit disturbance caused by earthworks during the construction of the subdivision.  The protective fencing is to be installed to a minimum distance of the ‘drip line’ and maintained for the duration of the civil works.

No trees are to be removed as part of this subdivision proposal.

Yes

3.4 – External Road works

 

External roads are in place.

Yes

3.5 – Internal Road Works

a.  The design and hierarchy of internal roads is to be in accordance with the requirements set out in the Northern Rivers Local Government ‘Development and Design Manual’ unless other details are specified below.

b.  Road widths are to be consistent with Element B6.1 Road Design and Construction of DCP 2002 or Council’s updated guidelines.

c.  The developers will be responsible for the construction of all internal roads.  All roads will be dedicated to Council as public roads.  Upon dedication and at the end of the maintenance period, Council will be responsible for the on-going maintenance of the roads.

 

d.  Formal concrete footpaths are to be provided as part of any new local road network.

No additional internal roads are required for the proposed subdivision are all lots are to be accessed from existing roads.

Yes

3.6 – Pedestrian / Bicycle Networks

Many of the release areas will be the furthermost from the village centre so it is essential that adequate bicycle networks are provided.  An integrated network of pedestrian/ cycle paths must be provided throughout the Bangalow Urban Release Areas such that it provides safe, convenient and direct access to, from and within the residential areas.  Any proposed internal pathway network must be linked to the adjacent external existing or proposed network in Bangalow in accordance with Maps 6 & 7.

The application proposes a footpath/bike way on the northern side of Parrot Tree Place. The DCP requires a path along Ivory Curl as well. Can be conditioned.

Yes

3.7 – Infrastructure Provision

Subdivisions must have adequate provision of contemporary services with minimal impact on the environment.  Compatible public utility services must be provided in common trenching wherever practical to minimise construction costs, soil erosion and land allocation for underground services.

The residential allotments being created as part of the proposed subdivision are required to be provided with water, sewer, electricity and telecommunication services.

Yes

3.8 - Stormwater Management

Effective stormwater management is critical to the future development of the Bangalow Urban Release Areas to ensure that the quantity and quality of run-off is such that it will have minimal impact upon the down stream environment.

Stormwater disposal is to be dealt with via conditions of consent.

Yes

3.9 - Landscaping

Sufficient trees must be planted in public areas to ensure that when mature, the trees will be the dominate element creating an appealing visual quality to streetscapes and parklands.  Trees must be located to ensure that there is a sufficient quantity and quality of soil within the anticipated root zone to support the intended mature tree.

Trees must be located to minimise infrastructure and functional conflicts.  For example trees must be so located that streetlights are not being blocked by the tree canopy or car doors will not opened onto tree trunks.

The location of street trees must optimise passive watering and integrate with water sensitive urban design (WSUD) initiatives.  These design principles are based on the Landcom Street Tree Design Guidelines and should be utilised to clarify the design criteria.

Landscaping plan required prior to construction certificate.

Yes

3.10 – Fencing to Public Places

Element Objectives

-          To ensure high quality streetscapes.

-          To ensure any fencing to public areas is consistent with crime prevention strategies.

The proposed residential allotments do not adjoin any public places other than road reserves (to which state planning provisions apply to fencing) and State Rail land for which a consent condition applies.

Yes

3.11 – Noise Attenuation

The subdivisions are to be designed so as to be consistent with the guideline Environmental criteria for road traffic noise May 1999 (or replacement guideline).  Note that this guideline is about to be replaced by the NSW Road Noise Policy, which is presently in draft form.

A site visit on 7 October 2011 identified adjacent properties to the north and east as existing residential. Land to the south of Parrot Tree Place has been rezoned as 2a and it is understood will soon be the subject of DA for subdivision (a DAP meeting was arranged for 4 October 2011 see 22.2011.18.1) and further residential development.  Standard condition attached re operating hours and noise levels. No noise issues expected as a result of this proposed development.

 

Yes

3.12 – Open Space Requirements

A neighbourhood park with a usable area between 0.25 Ha and 0.5 Ha must be provided within Areas 6 and 7.

 

Developer contributions credits will be provide for the provision of new neighbourhood parks and enhancement of existing neighbourhood parks in accordance with Council’s Development Contribution Plan.

 

The SEE states that a park will be provided in the next stage. Contributions will be required for this application.

 

Yes


 

Solar Access for Lots (SAL) Guidelines for Residential Subdivision in NSW

A SEDA assessment has not been undertaken as the layout and positioning of lots is dictated by the existing road network and provision of infrastructure.

 

All proposed lots are consistent with the element objectives i.e.:

 

·     To ensure that residential lots are capable of accommodating a range of housing types which provide pleasant streetscapes, maximise energy efficiency and mitigate environmental impacts.

 

3.4       The likely impacts of that development, including environmental impacts on both the natural and built environments, and social and economic impacts in the locality

 

The subject land is clear of significant vegetation and the application does not require any tree removal.

 

This development is the second stage of a residential subdivision the land having been previously rezoned for residential use.

 

Subject to consent conditions the proposed residential subdivision is unlikely to result in negative impacts on the natural, built, economic and social environments.

 

3.5       The suitability of the site for the development

 

The land is part of the Area 7 of Byron DCP 2010, Chapter 22 – Bangalow Urban Release Areas (see map 6 below).

 

The land is currently vacant with very little existing vegetation apart from the grass cover.

The majority of the infrastructure required for the proposed lots is already constructed, this being the penultimate stage of a staged subdivision.

 

The site is suitable for the development

 

Climate change:

 

Gases and water vapour in the Earth’s atmosphere vary in their ability to capture and recycle radiant heat emitted from the Earth’s surface. This “blanketing” action of the atmosphere is known as the Greenhouse Effect. Humans have varied the composition of the atmosphere through the addition of various gases, water vapour aerosols (suspension of submicroscopic particles dispersed in air or gas), causing an enhanced Greenhouse Effect. This is known as Global Warming or Climate Change. 

 

Some of the effects of Climate Change include temperature rise and subsequent sea level rise due to expansion of the oceans and melting of ice, changing rainfall patterns, altitudinal and latitudinal movement of biota in response to temperature rise. 

 

Causal factors for Climate Change include Plate Tectonics (movement of the Earth’s Plates, cyclical variation in solar radiation, volcanism, variations in the rotation and orbit of the Earth, and human influences. Human influences are assessed below and incorporate livestock (methane emissions and use of nitrogenous fertilisers), burning of fossil fuels, land use (deforestation, agriculture, industry etc), air pollutants and aerosols, and cement manufacture (involving heating of calcium carbonate to produce lime and carbon dioxide). Human influences are assessed below:


 

Anthropogenic causes of Climate Change

Impact of proposed development

Livestock

N/A

Burning fossil fuels

N/A

Land use

No tree removal additional landscape planting conditioned.

Air pollutants

N/A

Cement manufacture

Roads already in place

 

3.6       Submissions made in accordance with this Act or the regulations

 

There were 0 submissions made on the development application.

 

3.7       Public interest

 

It is in the public interest for vacant urban land to be lawfully developed to provide additional housing areas.  The proposed development is in the public interest.

 

4.         DEVELOPER CONTRIBUTIONS

 

4.1       Water & Sewer Levies

 

This existing vacant parcel of land currently has a water and sewerage entitlement of 1 ET.

Rates Dept advises that this land parcel currently pays water and sewer assess charges since 2002/2003.

 

The proposed subdivision will create 11 residential lots and a residue parcel.

Development

Number

ET Rate

ET

Residential lot

11

1

11

Residual lot

1

1

1

 

 

 

12

 

The proposed development generates an additional bulk water, water and sewer load of 12 – 1 = 11ET.

Council can supply water and sewerage to the proposed development on payment of Developer Servicing Charges.

These figures are at today’s date.

 

INDICATIVE CHARGES PURSUANT TO THE WATER MANAGEMENT ACT, 2000

 

 

(Office Use Only)

 

 

 

 

 

Water

(S64W Other)

11.00

ET @

$1,283.78

=

$14,121.63

Bulk Water

(BW-BG)

11.00

ET @

$8,377.00

=

$92,147.00

Sewer

(S64S Bang)

11.00

ET @

$19,414.68

=

$213,561.52

 

 

 

 

Total

 =

$319,830.16

 

4.2       Section 94 Contributions

 

Section 94 Contributions

Plan                 =          B.S.C. Development Contributions Plan 2005 dated June 2005

Catchment      =          Bangalow

Credit              =          1 SDU

Use/Type        =          Residential Subdivision

Demand          =          11 + residual

Contribution     =          11

Car Spaces     =         

Traffic             =          99 trips applicable – trips automatically generated in excel spreadsheet

 

RESIDENTIAL DEVELOPMENT

SCHEDULE OF CONTRIBUTIONS PURSUANT TO SECTION 94 OF THE ENVIRONMENTAL PLANNING AND ASSESSMENT ACT, 1979

 

 

 

(Office Use Only)

 

 

 

 

 

Community and Cultural Facilities

(CF-BG)

11.00

SDU @

$1,180.58

=

$12,986.35

           " - Shire Wide

(CF-SW)

11.00

SDU @

$603.98

=

$6,643.81

Open Space

(OS-BG)

11.00

SDU @

$2,984.42

=

$32,828.59

      " - Shire Wide

(OS-SW)

11.00

SDU @

$3,042.84

=

$33,471.20

Roads

(R-BG)

99.00

trips @

$823.89

=

$81,564.87

Cycleways

(CW-BG)

11.00

SDU @

$776.41

=

$8,540.53

Civic & Urban Improvements

(IM-BG)

11.00

SDU @

$1,644.20

=

$18,086.25

Rural Fire Service

-

 

 

 

=

 

Surf Lifesaving

(SL-BG)

11.00

SDU @

$29.62

=

$325.79

Administration

(OF-SW)

11.00

SDU @

$820.23

=

$9,022.53

 

 

 

 

Total

 =

$203,469.93

 

5.         CONCLUSION

 

The application proposes a subdivision to create the first stage of ‘Village Edge Estate’ residential subdivision at Ivory Curl Place and Parrot Tree Place in Bangalow.  The land to be developed is a component of recently rezoned, for residential user, land in Bangalow.

It is proposed to create 11 residential lots, and a residue lot, from an existing allotment that already has approved roads and infrastructure in place.

The proposal requires a SEPP1 objection to Clause 11 of Byron LEP and concurrence from the Director General Planning & Infrastructure NSW.  A SEPP1 objection was provided and concurrence was granted.

The proposed subdivision is consistent with all the relevant state and regional environmental planning instruments and with Byron LEP 1988 and the Byron DCP 2010 including Chapter 22 - Bangalow Urban Release Areas.

The proposed development is a suitable and economic use of the site, complies with relevant environmental planning provisions and is not likely to have a significant environmental impact.

 

The proposal is in the public interest as it will provide additional residential lots in an area of existing shortage.

 

The application is recommended for approval subject to conditions of consent.


 

6.         RECOMMENDATION

 

That pursuant to Section 80 of the Environmental Planning & Assessment Act 1979, development application 10.2011.377.1 for subdivision to create 11 lots and balance lot, be granted consent subject to the conditions listed in the Annexure.

 

7.         DISCLOSURE OF POLITICAL DONATIONS AND GIFTS

 

Has a Disclosure Statement been received in relation to this application

No

Have staff received a ‘gift’ from anyone involved in this application that needs to be disclosed. Where the answer is yes, the application is to be determined by the Director or Manager of the Planning, Development and Environment Division.

No

 

Provide Disclosure Statement register details here:

 

 

 

Report No. 12.25.

PLANNING - 10.2011.319.1 - Subdivision to create four residential lots and one residual lot

Executive Manager:   Environment and Planning

File No:                        48400, 163980 #1187083

 

 

NOTE TO COUNCILLORS:

 

In accordance with the provisions of S375A of the Local Government Act 1993, a Division is to be called whenever a motion for a planning decision is put to the meeting, for the purpose of recording voting on planning matters.  Pursuant to clause 2(a) under the heading Matters to be Included in Minutes of Council Meetings of Council's adopted Code of Meeting Practice (as amended) a Division will be deemed to have been called by the mover and seconder of all motions relating to this report.

 

 

RECOMMENDATION:

 

That pursuant to Section 80 of the Environmental Planning & Assessment Act 1979, development application 10.2011.319.1 for subdivision to create three residential lots and one residual rural lot, be granted consent subject to the conditions of consent in Annexure 29(b) (#1187099).

 

 

Attachments:

Locality Map

 

·       Site Plan #1187123 [1 page]........................................................................................... Annexure 29(a)

·       Conditions of Consent #1187099 [13 pages]................................................................... Annexure 29(b)

 



DA No:

10.2011.319.1

Proposal:

Subdivision to create 4 residential lots and 1 residual lot

Property description:

Lot 196 DP: 755687, Lot 197 DP 755687

71 Main Arm Road Mullumbimby

Parcel No/s:

48400, 163980

Applicant:

Mr P Prior

Owner:

Mr P Prior

Zoning:

Zone No. 1(a) - General Rural Zone

Zone No. 2(a) - Residential

Date received:

11 August 2011

Integrated Development:

·      Bush Fire Safety Authority – Section 100B Rural Fires Act 1997, and 

·      Controlled Activity Approval – Section 91(2) Water Management Act 2000

Public notification or exhibition:

Level 2 advertising under DCP 17 – Public Notification and Exhibition of Development Applications

Exhibition period: 25/8/11 to 7/9/11

Submissions: For = 0               Against = 0 

 

Other approvals (S68/138):

Not applicable

Planning Review Committee:

N/A 

Delegation to determination:

Council

Issues:

·         SEPP 1 Objection to minimum allotment size;

·         Residential use of land within the 1(a) General Rural Zone;

·         Bushfire Prone Land – IPA in Riparian Corridor.

·         Flood liable land.

Summary:

The proposed subdivision involves two existing allotments legally described as Lots 196 and 197 in DP 755687 have a combined area of 3.855 hectares.

The applicant seeks development consent to subdivide the two existing allotments making up the site into three (3) residential allotments to accommodated future dwellings, and one (1) residual allotment that will accommodate the existing dwelling. The areas of the proposed allotments are described below:

Lot 1 = 946.8m2

Lot 2 = 603.0m2

Lot 3 = 804.4m2

Lot 4 = 1,162.5m2

Lot 5 = 3.68 hectares

 

The majority of the land that will comprise Lot 5 and the existing dwelling is within Zone 1(a) – General Rural.  The four proposed residential allotments, Lots 1 to 4, are located mostly within Zone 2(a) Residential Zone

Proposed Lots 1 to 4 have frontage to, and are to be accessed from, Chinbible Avenue. The dwelling-house located within proposed Lot 5 will continue to have access from Main Arm Road.

A previous application proposed a similar subdivision, however that application included areas of flood prone land and riparian corridors and was refused for potential impacts to and from those constraints.  This application has addressed those concerns for proposed lots 2-4 however under the conditions of the NSWRFS Bushfire Safety Authority, Lot 1 would require the implementation of an Asset Protection Zone within the riparian corridor of Chinbible Creek.  Subsequently proposed Lot 1 is not supported.

 

Apart from proposed Lot 1 the proposal is in accordance with all relevant state and regional planning instruments apart from a variation to Clause 11, with Byron LEP 1988. The proposal is in accordance with Byron Development Control 2010 requirements.

 

The subdivision is lawful development, and is in the public interest as it will create three additional residential lots.

 

Subject to the deletion of proposed Lot 1 and the recommended consent conditions the application is considered worthy of support.

 

 

Copy of consent and submissions to be provided to NSW Office of Water


 

1.         INTRODUCTION

 

1.1       History/Background

 

The following past development application has been identified for the subject site:

10.2006.736.1        Subdivision comprising three (3) residential lots and one (1) rural lot. The application was refused consent on 10 April 2007.

It is also noted that a dwelling-house currently exists within Lot 197 DP 755687, however no records have been identified within Council’s Authority System of Development or Building Approvals within either Lot 196 or 197 DP 755687.

 

1.2       Description of the site

 

The proposed subdivision involves two adjoining allotments legally described as Lots 196 and 197 in Deposited Plan 755687. The allotments are located on the northern side of Main Arm Road, within the western outskirts of the Mullumbimby urban area. The subject site is located at the north-west corner of Main Arm Road and Chinbible Avenue.

The two allotments are located primarily within the 1(a) General Rural Zone. However, the south-eastern corner of Lot 197 is located within the 2(a) Residential Zone under Byron Local Environmental Plan 1988. Lot 196 is generally cleared and is vacant of development (See Figure 1). Lot 197 is occupied by a dwelling-house, contains a number of mature trees and is traversed by Chinbible Creek.

The site comprises undulating terrain that falls towards the creek. Residential uses are located to the east and south-east. The Mullumbimby showgrounds are located to the south, and a school is located to the south-west. Rural-residential uses occupy the allotments to the north.

Figure 1 - Aerial photograph of subject site (2009)

 

1.3       Description of the proposed development

 

The proposed subdivision involves two existing allotments legally described as Lots 196 and 197 in DP 755687, 71 Main Arm Road, Mullumbimby.  The two lots have a combined area of 3.855 hectares.

 

The applicant seeks development consent to subdivide the two existing allotments making up the site into three (3) residential allotments to accommodate future dwellings, and one (1) residual allotment that will accommodate the existing dwelling. The areas of the proposed allotments are described below:

Proposed Lot

Area

1

946.81 m² (not supported)

2

603.0 m²

3

801.1 m²

4

1221.0 m²

5

3.68 ha

Proposed Lots 1 to 4 have frontage to and are to be accessed from Chinbible Avenue. The dwelling-house located within proposed Lot 5 will continue to have access from Main Arm Road.

Proposed Lot 1 not supported

 

 

The majority of the land, the land that will comprise Lot 5 and the existing dwelling is within Zone 1(a) – General Rural.  The four proposed residential allotments, Lots 1 to 4, are located within Zone 2(a) Residential Zone

 

A previous application proposed a similar subdivision, however that application included areas of flood prone land and riparian corridors and was refused for potential impacts to and from those constraints.  This application has addressed those concerns for proposed lots 2-4 however under the conditions of the NSWRFS Bushfire Safety Authority, Lot 1 would require the implementation of an Asset Protection Zone within the riparian corridor of Chinbible Creek.  Subsequently proposed Lot 1 is not supported.

 

2.                  SUMMARY OF REFERRALS

 

 

Summary of Issues

NSW Department of Planning and Infrastructure

SEPP 1 Objection Concurrence Authority. See Section 3.1a of this report.

NSW Rural Fire Service

Bush Fire Safety Authority required pursuant to Section 100B of Rural Fires Act 1997. See Section 2.1 of this report.

NSW Office of Water

Controlled Activity Approval required pursuant to Section   91(2) Water Management Act 2000. See Section 2.1 of this report.

 

2.1       SECTION 91A - Development that is integrated development

 

Pursuant to Section 91 of the Environmental Planning and Assessment Act 1979 (EP&A Act) the proposed development was referred to the NSW Rural Fire Service for a Bushfire Safety Authority (Section 100B of the NSW Rural Fires Act 1997). The application was also referred to the NSW Office of Water for a Controlled Activity Approval required pursuant to Section 91(2) Water Management Act 2000.

 

NSW Rural Fire Service

 

The NSW Rural Fire Service has issued a Bush Fire Safety Authority pursuant Section 100B of the Rural Fires Act 1997 subject to the following conditions:

 

Asset Protection Zones

The intent of measures is to provide sufficient space and maintain reduced fuel loads so as to ensure radiant heat levels of buildings are below critical limits and to prevent direct flame contact with a building. To achieve this, the following conditions shall apply:

1.    Proposed Lots I to 4 shall be managed as an inner protection area (IPA) as outlined within Appendices 2 & 5 of ‘Planning for Bush Fire Protection 2006’, until further developed.

2.    Future dwellings on proposed Lots I to 4 shall have a minimum APZ of 10 metres to the west / northwest. Where the APZs lie outside the boundary of the Lot on the adjoining land, then they must be covered by an easement.

Water and Utilities

The intent of measures is to provide adequate services of water for the protection of buildings during and after the passage of a bush fire, and to locate gas and electricity so as not to contribute to the risk of fire to a building. To achieve this, the following conditions shall apply:

3.    Water, electricity and gas are to comply with section 4.1.3 of ‘Planning for Bush Fire Protection 2006’.


Landscaping

4.       Landscaping surrounding the existing dwelling shall comply with the principles of Appendix 5 of ‘Planning for Bush Fire Protection 2006’.

Because proposed Lot 1 is not supported by this assessment, for the reasons discussed in Section 1.3, the 10m APZs required by the Bushfire Safety Authority (BSA), can now be implemented within the boundaries of proposed lots 2 to 4, therefore the last sentence of condition 2 of the BSA is no longer relevant. 

 

An email was sent to RFS regarding possible amendment to the Bushfire Safety Authority, their response (#1184969), is as follows:

 

Your proposal to delete proposed lot 1 is supported.

If the APZs for future dwellings can be achieved within the boundary of each lot, then condition 2 can be deleted. Future dwellings will be assessed and conditioned under 79BA.

It may be appropriate for Council to issue a conditional approval subject to an amended BFSA for the revised layout being obtained from the RFS.

 

Subsequently a condition of consent is to be included for prior to issue of subdivision certificate that states:

An amended Bushfire Safety Authority is to be obtained from the NSWRFS reflecting the alterations in red on the approved plan that allows the 10m APZs, for future dwellings on Lots 2-4, to be implemented within those individual lot boundaries and not on the residual lot.

NSW Office of Water

 

Re: Integrated Development Referral General Terms of Approval

DA 10.2011.319.1 - Subdivision to create 4 residential lots and I residual lot, Lot 196 DP 755687 & Lot 197 DP 755687; 71 Main Arm Road, Mullumbimby

I refer to your recent letter regarding an Integrated Development Application (DA) proposal for the subject property. Attached, please find the NSW Office of Water’s General Terms of Approval (GTA) for ‘works’ requiring a Controlled Activity Approval under the Water Management Act 2000 (WMA), as detailed in the subject DA.

If the proposed development is approved by Council, the NSW Office of Water requests that these GTA be included (in their entirety) in Council’s development consent. Please also note the following:

·               The NSW Office of Water should be notified if any plans or documents are amended and these amendments significantly change the proposed development or result in additional ‘works’ on waterfront land (ie in or within 40 metres from top of highest bank of a watercourse, foreshore, or lake). Once notified, the NSW Office of Water will ascertain if the amended plans require review or variation/s to the GTA. This requirement applies even if the proposed ‘works’ are part of Council’s proposed consent conditions and the ‘works’ do not appear in the original documentation.

·               The NSW Office of Water should be notified if Council receives an application to modify the consent conditions. Failure to notify may render the consent invalid.

·               The NSW Office of Water requests notification of any legal challenge to the consent.

Under Section 91A(6) of the EPAA, Council must provide the NSW Office of Water with a copy of any determination/s including refusals.

As a controlled activity (ie the ‘works’) cannot commence before the applicant applies for and obtains a Controlled Activity Approval, the NSW Office of Water recommends that the following condition be included in the development consent:

“The Construction Certificate will not be issued over any part of the site requiring a Controlled Activity Approval until a copy of the Approval has been provided to Council”.

The attached GTA are not the Controlled Activity Approval. The applicant must apply (to the NSW Office of Water) for a Controlled Activity Approval after consent has been issued by Council and before the commencement of any ‘works’ on waterfront land.

Finalisation of a Controlled Activity Approval can take up to 8 weeks from the date the NSW Office of Water receives all documentation (to its satisfaction). Applicants must complete and submit (to the undersigned) an application form together with any required plans, documents, the appropriate fee and security (ie bond, if applicable) and proof of Council’s development consent.

Application forms for the Controlled Activity Approval are available from the undersigned or from the NSW Office of Water’s website http:llwww.water. nsw.qov. aulWater-Licerisinq/Approvals/Controlled-activities/default. aspx  

Compliance with these GTA would not be possible for proposed Lot 1 if a 10 metre Inner Protection Area, as required under the Bushfire Safety Authority, was to be established to the west and north-west of a dwelling on that lot (in the riparian corridor). 

The NSW Office of Water requests that Council provide a copy of this letter to the applicant.

GENERAL TERMS OF APPROVAL – For works requiring a Controlled Activity Approval under the Water Management Act 2000.

Our Reference

30 ERM2011/0875

File No

9055227

Site Address

Lot 196 DP 755687 & Lot 197 DP 755987, 71 Main Arm Road, Mullumbimby

DA Number

10.2011.319.1

LGA

Byron Shire Council

Number

Condition

Plans, standards and guidelines

1.       

These General Terms of Approval (GTA) only apply to the controlled activities described in the plans and associated documentation relating to DA10.201 1 .319.1 and provided by Council.

Any amendments or modifications to the proposed controlled activities may render these GTA invalid. If the proposed controlled activities are amended or modified the NSW Office of Water must be notified to determine if any variations to these GTA will be required.

2.       

Prior to the commencement of any controlled activity (works) on waterfront land, the consent holder must obtain a Controlled Activity Approval (CAA) under the Water Management Act from the NSW Office of Water. Waterfront land for the purposes of this DA is land and material in or within 40 metres of the top of the bank or shore of the river identified.

3.       

The consent holder must prepare or commission the preparation of:

(i) Vegetation Management Plan

(ii) Erosion and Sediment Control Plan

(iii) Soil and Water Management Plan

4.       

All plans must be prepared by a suitably qualified person and submitted to the NSW Office of Water for approval prior to any controlled activity commencing. The plans must be prepared in accordance with the NSW Office of Waters guidelines located at www.water.nsw.gov.au/WaterLicensing)Approvals/default.aspx

(i) Vegetation Management Plans

(ii) Riparian Corridors

(iii) Outlet structures

5.       

The consent holder must (i) carry out any controlled activity in accordance with approved plans and (ii) construct and/or implement any controlled activity by or under the direct supervision of a suitably qualified professional and (iii) when required, provide a certificate of completion to the NSW Office of Water.

Rehabilitation and maintenance

6.       

The consent holder must carry out a maintenance period of two (2) years after practical completion of all controlled activities, rehabilitation and vegetation management in accordance with a plan approved by the NSW Office of Water.

7.       

N/A

Reporting requirements

8.       

The consent holder must use a suitably qualified person to monitor the progress, completion, performance of works, rehabilitation and maintenance and report to the NSW Office of Water as required.

Security deposits

9.       

N/A

Access-ways

10.   

N/A

11.   

N/A

Bridge, causeway, culverts, and crossing

12.   

 

13.   

N/A

Disposal

14.   

The consent holder must ensure that no materials or cleared vegetation that may (i) obstruct flow, (ii) wash into the water body, or (iii) cause damage to river banks; are left on waterfront land other than in accordance with a plan approved by the NSW Office of Water.

Drainage and Stormwater

15.   

The consent holder is to ensure that all drainage works (i) capture and convey runoffs, discharges and flood flows to low flow water level in accordance with a plan approved by the NSW Office of Water; and (ii) do not obstruct the flow of water other than in accordance with a plan approved by the NSW Office of Water.

16.   

The consent holder must stabilise drain discharge points to prevent erosion in accordance with a plan approved by the NSW Office of Water.

Erosion control

17.   

The consent holder must establish all erosion and sediment control works and water diversion structures in accordance with a plan approved by the NSW Office of Water. These works and structures must be inspected and maintained throughout the working period and must not be removed until the site has been fully stabilised.

Excavation

18.   

The consent holder must ensure that no excavation is undertaken on waterfront land other than in accordance with a plan approved by the NSW Office of Water.

19.   

N/A

Maintaining river

20.   

Other than in accordance with a plan approved by the NSW Office of Water.

21.   

N/A

River bed and bank protection

22.   

N/A

23.   

The consent holder must establish a riparian corridor along Chinbible Creek in accordance with a plan approved by the NSW Office of Water.

Plans, stand standards and guidelines

24.   

N/A

25.   

N/A

26.   

N/A

27.   

N/A

END OF CONDITIONS                                       

 


 

3.         SECTION 79C – MATTERS FOR CONSIDERATION – DISCUSSION OF ISSUES

 

Having regard for the matters for consideration detailed in Section 79C(1) of the Environmental Planning & Assessment Act 1979, the following is a summary of the evaluation of the issues.

 

3.1.      STATE/REGIONAL PLANNING POLICIES AND INSTRUMENTS

 

Requirement

Summary of Requirement & Assessment

Complies

State Environmental Planning Policy No. 1 – Development Standards.

This Policy provides flexibility in the application of planning controls operating by virtue of development standards in circumstances where strict compliance with those standards would, in any particular case, be unreasonable or unnecessary or tend to hinder the attainment of the objects specified in section 5 (a) (i) and (ii) of the Act.

 

The applicant seeks to vary the minimum 40ha allotment size to create a residual allotment within the 1(a) General Rural Zone.

 

Refer to assessment within Section 3.1a of this report.

Yes

State Environmental Planning Policy No. 55 – Remediation of Land

Consent must not be granted unless the matters listed under SEPP 55 have been considered.

Council’s Environmental Officer assessed the proposal as satisfactory with regard to the provisions of SEPP No. 55. (Refer to Doc No.1130103)

Yes

State Environmental Planning Policy No. 71 – Coastal Protection

Council must have regard for the aims of SEPP No. 71 as well as the matters of consideration under Part 2 of SEPP No. 71 when assessing development within the coastal zone.

The site of the proposed subdivision is located within the ‘coastal zone’ as defined within the NSW Coastal Policy 1997. The proposal is considered to be consistent with the provisions of SEPP No. 71.

Yes

 

Council must have regard for the following aims of SEPP No. 71 for development within the Coastal Zone:

 

 

 

-        to protect and manage the natural, cultural, recreational and economic attributes of the New South Wales coast,

The proposal is unlikely to result in adverse impacts on the waterways of the coastal zone.

Yes

 

-        to protect and improve existing public access to and along coastal foreshores to the extent that this is compatible with the natural attributes of the coastal foreshore,

The proposal does not detrimentally impact on the amenity of the coastal foreshore.

Yes

 

-        to ensure that new opportunities for public access to and along coastal foreshores are identified and realised to the extent that this is compatible with the natural attributes of the coastal foreshore,

The site does not present any opportunities for increased access to the foreshore.

Yes

 

-        to protect and preserve Aboriginal cultural heritage, and Aboriginal places, values, customs, beliefs and traditional knowledge,

The proposal is unlikely to adversely impact on aboriginal heritage.

Yes

 

-        to ensure that the visual amenity of the coast is protected,

The proposal does not have an adverse impact on the scenic qualities of the coast.

Yes

 

-        to protect and preserve beach environments and beach amenity,

The proposal does not have an adverse impact on beach environments or amenity.

Yes

 

-        to protect and preserve native coastal vegetation,

The subject site is located within an urban area that has largely been cleared of native coastal vegetation,

Yes

 

-        to protect and preserve the marine environment of New South Wales,

The proposal is likely to result in adverse impacts on the waterways of the coastal zone.

Yes

 

-        to protect and preserve rock platforms,

The proposal does not have an adverse impact on rock platforms.

Yes

 

-        to manage the coastal zone in accordance with the principles of ecologically sustainable development (within the meaning of section 6 (2) of the Protection of the Environment Administration Act 1991),

The principles of ecologically sustainable development are used during the assessment of any Development Application under Byron Local Environmental Plan 1988.

Yes

 

-        to ensure that the type, bulk, scale and size of development is appropriate for the location and protects and improves the natural scenic quality of the surrounding area,

The scale of the development is consistent with the surrounding locality.

Yes

 

-        to encourage a strategic approach to coastal management.

The proposal has been designed with regards to the existing strategic planning framework.

Yes

 

Council must have regard for the matters of consideration under Part 2 when assessing development within the coastal zone. These matters include:

-        retention of existing public access to the coastal foreshore,

 

 

 

The proposal does not impact on access to the coastal foreshore.

Yes

 

-        opportunities to provide new public access to and along the coastal foreshore,

The site does not present any opportunities for increased access to the foreshore.

Yes

 

-        the suitability of development given its type, location and design and its relationship with the surrounding area,

The proximity of the development and its on-site sewage management systems to Chinbible Creek provides that the site is not suitable for the development.

No

 

-        any detrimental impact on the amenity of the coastal foreshore, including significant overshadowing or loss of views to the coastal foreshore from a public place,

The proposal does not detrimentally impact on the amenity of the coastal foreshore. Nor does it result in significant overshadowing or loss of views of the foreshore from a public place.

Yes

 

-        the scenic qualities of the New South Wales coast, and means to protect and improve these qualities,

The proposal does not have an adverse impact on the scenic qualities of the NSW coast.

Yes

 

-        measures to conserve animals and plants within the Threatened Species Conservation Act and their habitats,

The subject site is located within an urban area. The proposal does not require direct measures to be undertaken to conserve animals and plants other than standard pollution controls applicable during construction and use of the development.

Yes

 

-        measures to conserve fish and marine vegetation within the Fisheries Management Act and their habitats,

The proposed on-site waste water disposal systems are of an insufficient design that are likely to result in adverse impacts on the waterways of the coastal zone. It is not prudent to grant approval to the subdivision in this instance.

No

 

-        the impact of the development on wildlife corridors,

The subject site is not located within any known wildlife corridors.

Yes

 

-        the likely impact of coastal processes and coastal hazards on development and any likely impacts of development on coastal processes and coastal hazards,

The site is not directly influenced by coastal processes.

Yes

 

-        measures to reduce the potential conflict between land based and water based coastal activities,

The proposal does not require direct measures to be undertaken to reduce potential land and water based conflicts.

Yes

 

-        measures to protect aboriginal heritage,

The proposal is unlikely to adversely impact on aboriginal heritage.

Yes

 

-        likely impacts on water quality of coastal waterbodies.

The proposed on-site waste water disposal systems are of an insufficient design that are likely to result in adverse impacts on the waterways of the coastal zone.

No

 

-        the conservation and preservation of items of heritage, archaeological or historic significance,

The proposal is unlikely to adversely impact on items of heritage, archaeological or historic significance.

Yes

 

-        the cumulative impacts of the proposed development on the environment, and

The proposed impacts on water quality are likely to accumulate impacts with other development.

No

 

-        measures to ensure that water and energy usage by the proposed development is efficient.

Future development of the land would control this requirement.

Yes

Clauses of the North Coast Regional Environmental Plan 1988 that are applicable to the proposed development

Clause 43 – Refer to comments within Issues Section below.

Refer to comments within Issues Section below.

Yes

Issues discussed below

 

3.1a - State/Regional Planning Policies and instruments – Issues

State Environmental Planning Policy 1 – Development Standards.

The applicant seeks to vary the minimum 40ha allotment size to create a residual allotment within the 1(a) General Rural Zone.  The applicant submitted A SEPP 1 objection for the variation to Clause 11 of Byron Local Environment Plan 1988 which Council forwarded to NSW Planning and Infrastructure for concurrence from the minister.

The SEPP 1 objection states that the subject land is already well below the 40 hectare minimum area and that the resulting residue lot and parts of two residential lots (now only one lot as proposed Lot 1 is not supported), will be under the minimum 40ha area.  The subdivision would therefore result in lots partly zoned 1(a) which is less than the minimum 40 ha prescribed.

The SEPP1 objection offers the following justification:

·           The variation is justified as the resulting subdivision provides for the underlying objectives to be met whereas strict application of the standard would result in the objectives being undermined.

·           Strict compliance with the standard is considered unreasonable, unnecessary and not practical in the circumstances of the site.

·           The application does not raise any matter of significance for state or regional planning.

·           No public benefit is likely to result from maintaining the numerical development standard in the circumstances of the particular case.

·           The objection is sought, not to depart from sound planning, but to provide a reasonable solution to the circumstances of the situation.

·           The inconsistency is justified as the design complies with the objectives and intent of the zone objectives

·           The merits of the proposal are demonstrated within this report.

While the SEPP1 objection does not go into detail regarding these justifications, it is supported by the Director General of NSW Department of Planning who granted concurrence. 

The NSW DoP provided the following comment with the concurrence:

Following consideration of the application, concurrence has been granted to vary the 40 hectare minimum lot size development standard for land in the 1(a) General Rural Zone, contained in clause 11 of the Byron Local Environment Plan 1988. The granting of concurrence will permit the creation of lot 5 of 3.68ha, lot 1 of 946.81m2 and lot 2 of 603m2 even though these lots  are zoned partly 1(a) general Rural.

Concurrence was granted in this instance for the following reasons;

It is noted that the zoning maps for the draft standard LEP reflect the current zoning configuration. It is suggested that, should this subdivision be approved by Council, the zoning maps for the draft LEP be changed to align with the property boundaries of the proposed development.

This report also supports the variation to the standard for the reasons given by NSW DoP. Additionally the land proposed for the four residential lots (three supported), is physically separated from the majority of the zone 1(a) land by a steep embankment and creek, which results in the majority of the zone 1(a) land being approximately 4 metres below the proposed residential lots within the mostly zone 2(a) land.  The very small portions of zone 1(a) land within proposed lots 1 & 2 is of no agricultural value.

North Coast Regional Environmental Plan 1988

Clause 43 of the North Coast Regional Environmental Plan is as follows:

The council shall not grant consent to development for residential purposes unless:

(f)      it is satisfied that the density of the dwellings have been maximised without adversely affecting the environmental features of the land,

(g)     it is satisfied that the proposed road widths are not excessive for the function of the road,

(h)     it is satisfied that, where development involves the long term residential use of caravan parks, the normal criteria for the location of dwellings such as access to services and physical suitability of land have been met,

(i)       it is satisfied that the road network has been designed so as to encourage the use of public transport and minimise the use of private motor vehicles, and

(j)       it is satisfied that site erosion will be minimised in accordance with sedimentation and erosion management plans.

Although the proposal comprises an infill subdivision, it generally meets the provisions of Clause 43 above.

 

3.2.      BYRON LOCAL ENVIRONMENTAL PLAN 1988

 

Zone: Part Zone No. 1(a) – General Rural and Zone No. 2(a) - Residential Zone

Definition: Subdivision

 

LEP Requirement

Summary of Requirement

Complies

ZONE No. 1(a)(GENERAL RURAL ZONE)

 

 

 

 

2(a) RESIDENTIAL ZONE

 

(e)  to make provision for certain suitable lands, both in existing urban areas and new release areas, to be used for the purposes of housing and associated neighbourhood facilities of high amenity and accessibility;

The proposed infill subdivision is located between existing residential development and rural lands.  The site is close to the Mullumbimby town centre, approx 1.5 km from the PO.  Schools are located within 700 metres and a pre-school within 200 metres.

Yes

 

(f)    to encourage a range of housing types in appropriate locations;

The proposed allotment layout is such that it will encourage a range of housing types in an appropriate location.

Yes

 

(g)  to enable development for purposes other than residential purposes only if it is compatible with the character of the living area and has a domestic scale and character; and

No development is proposed that is not of a residential purpose.

Yes

 

(h)  to control by means of a development control plan the location, form, character and density of permissible development.

The location, form, character and density of subdivision development in the locality is consistent with the provisions of Byron Development Control Plan 2010.

Yes

Clause 10 - Subdivision generally

A person shall not subdivide land to which this plan applies except with the consent of the council.

Development consent has been sought.

Yes

 

However, consent is not required for a subdivision under the Strata Schemes (Freehold Development) Act 1973 of a lawfully erected building on land within Zone No 2(a), 2(t), 2(v), 3(a), 4(a) or 7(f2).

Strata subdivision is not proposed.

Yes

 

Where land is zoned for the purpose of a proposed new road, the council shall not consent to a subdivision of land of which the proposed road forms part unless the subdivision makes provision for the opening of a road in reasonable conformity with the proposed road. 

The land is not zoned for the purpose of a proposed new road.

Yes

11. Subdivision in rural areas for agriculture, etc.

 

Each lot to have a minimum area of:

Zone 1(a) = 40ha

The subdivision proposes lots containing land within Zone 1(a) less than the minimum 40 ha.

A SEPP1 objection to the development standard was submitted.

NO

(See section 3.1a for details of SEPP1 objection)

Clause 24 - Development of flood liable land

Council must be satisfied that:

-        flow characteristics of flood waters are not restricted;

-        the level of flooding is not increased;

-        any building or work is capable of withstanding flooding;

-        the building is adequately flood proofed; and

-        adequate arrangements are made for access to the building or work during a flood

Some northern portions of the zone 1(a) land is identified on Council’s GIS as being flood prone land.   A natural watercourse, known as Chinbible Creek, traverses the subject site. The proposed residential lots are located away from this creek and the existing levels are 7.5m to 7.85 AHD.

 

The 1 in 100 year flood level of for the dwelling sites is 6.82m AHD

 

Yes

Clause 45 – Provision of Services

Council must be satisfied that prior adequate arrangements have been made for provision of water, sewer and drainage services.

The land can be fully serviced.

 

Water and sewer charges are to be levied.

Yes

* Non-complying issues discussed below

 

Draft EPI that is or has been placed on public exhibition and details of which have been notified to the consent authority - Issues

 

N/A

 

3.3       DEVELOPMENT CONTROL PLANS

 

Development Control Plan 2010

 

Chapter 1   Part B – Subdivision

 

Development Control Requirements

DCP Requirement

Proposed

Compliance

 

B2.3 - Site Design

The subdivision must take into account all natural and human – made aspects of the site to be developed.

The site contains 1 in 100 year flood prone land.

The site is generally clear of vegetation and development. The subdivision design has taken into account the physical attributes of the site.

 

Yes

B2.4 - Climate Control

The subdivision must take into consideration wind direction and vegetation types and location.

The subdivision design has taken into account the natural features of the locality.

Yes

B2.5 - Aspect

The subdivision must take into consideration solar access.

Solar access has been considered in the layout of the proposed allotments.

Yes

B4.5 – Stormwater Drainage

Facilitate effective drainage provision and management.

Stormwater drainage has been conditionally supported by Council.

Yes

B2.7 – Tree Preservation

The subdivision layout must encourage retention of existing trees. 

The site is generally clear of vegetation.

Yes

B2.8 - Landscaping

The subdivision should take into consideration landscaping and Council should impose landscaping requirements where necessary.

The consent holder must establish a riparian corridor along the unnamed creek in accordance with a plan approved by the NSW Office of Water.

In addition, contributions have been levied in accordance with Council’s Section 94 Plan.

Yes

B3.2, 3.3 & 3.4 – Roads

The subdivision must take into consideration road design.

No new roads proposed or required.

Yes

B3.5 – Public Open Space

Subdivisions should form part of a pedestrian/cycleway network which connects the subdivision with other facilities including public open space areas (It is Council’s responsibility to establish to location of pedestrian/cycleway/public open areas using S.94 Contributions)

 

Yes

B3.6 – Lot Size

Subdivision lot sizes are to comply with Part B5.1 of DCP 2002.

**See Part B5.1 comments below.

Yes

B3.7 – Lot Frontage

The subdivision must take into consideration the orientation of each lot and it’s ability to provide a suitable house site with good aspect, useable private open space and adequate vehicle access.

The proposal meets the requirements of Part B5 of DCP 2010.

Yes

B5.1 – Lot Size

General lot - 600 m2

Two general lots proposed each with areas of not less than 603 m2.

Yes

 

Corner lot - 650 m2

One 1162.47m2 corner lot is proposed. 

Yes

 

Hatchet-shaped lot - 800 m2 (excluding access handle).

N/A

Yes

 

Hatchet-shaped lot adjacent to public reserve - 650 m2 (excluding access handle)

N/A.

Yes

 

Fan-shaped lot - 650 m2 (minimum frontage 7m)

N/A

Yes

B5.2 - Allotment Layout

Where possible lots should be orientated to provide the long axis within the range N20oW to N30oE or E20oN to E30oS.

The majority of the proposed allotment meet this requirement or contain nominal building envelopes that meet this requirement.

Yes

 

Where possible, lots must be rectangular rather than splay shaped to maximise the opportunity for energy efficient housing.

The majority of the proposed allotments meet this requirement.

Yes

 

Lots must be staggered and landscaped to achieve maximum solar access and to create interest in the streetscape.

The subdivision creates three residential lots that achieve good solar access and when developed the dwelling lots can achieve an interesting streetscape. 

Yes

 

Lots and the associated vehicular and pedestrian access ways must be configured to provide convenient access to public open space areas and community facilities.

No public open space or community facilities are proposed as part of the subdivision.

N/A

 

Vegetation which adds significantly to the visual amenity of the area of the land must be preserved where possible.

No tree removal is proposed.

Yes

 

Lot layout and pedestrian access way networks are to maximise the opportunities for observation of buildings, spaces and activities by residents, passing motorists and pedestrians.  Double street frontages (ie. front and rear) are to be avoided and pedestrian access ways are to run largely along public spaces (including roads and open spaces).

The subdivision has been designed to meet this requirement.

Yes

 

Subdivision proposals in the urban areas of the Shire are to have regard to the possible environmental constraints that may affect any particular site.

 

The site is flood height constrained.

The proposed large lot containing the existing house is flood prone.

The three residential lots are not located on flood prone land.

Yes

 

Where lands are identified as containing or adjoining bushland or contain or adjoin lands containing endangered flora and fauna species, development proposals are to be accompanied by flora and fauna assessments prepared by suitably qualified persons.

The site is clear of significant vegetation.

 

A flora and fauna report is not required.

Yes

 

Development proposals which involve the development of land in close proximity to watercourses or other areas of possible inundation, are to be accompanied by a hydrologic study submitted by an appropriately qualified person to demonstrate that the proposal or any future development will not interfere with the natural flow-path or be subject to flooding.

Hydraulic study submitted satisfies requirements.

Yes

 

Lots must be designed to allow the construction of a building or carriageway with a maximum cut or fill of 1m from natural ground level whilst not impeding the flow of waters.

No cut and fill proposed or required.

Yes

 

Lands identified as having moderate or high bushfire hazard must be accompanied by a fire management plan to adequately minimise risk.

Bushfire risk was assessed by NSWRFS who granted a Bushfire Safety Authority subject to conditions.

 

Yes

B5.3 – Allotment Design

Lots must be able to accommodate a building envelope with minimum dimensions 12 metres by 15 metres.

Each lot is capable of containing a building envelope of these dimensions.

Yes

 

Building envelopes must be sited to avoid site constraints and take advantage of site opportunities.

 

The design meets this requirement.

Yes

 

Lots must be designed to maximise useable areas of the site and have regard to the topography.

The design meets this requirement.

Yes

 

Hatchet-shaped lots must have a minimum frontage of 5m (ie, 3m driveway and provision for services, landscaping etc).  This may translate as 3m each if reciprocal rights of carriageway provide shared access, but no more than 2 lots are to be accessed in this way (ie 4m driveway and provision for services, landscaping etc).

N/A.

Yes

 

Landscaping of the access handle of hatchet-shaped lots is required.  A landscaping plan must be submitted with the development application for subdivision - refer to Part H of this Development Control Plan for details.

N/A.

Yes

 

Chapter 1 B6.1 – Road Design and Construction.

 

Prescriptive Measure

Proposed

Complies

Widths of roads to be in accordance with D.1.5. This requires 7 - 9m carriageway for a local access road serving more than 15 lots.

Application proposes using existing Chinbible Avenue as access. Suitable conditions will be imposed to provide K& G plus half road widening to provide 7- 9 m carriageway

Yes

No minor access road or access way must provide through traffic.

N/A

Yes

No allotment is to have its sole access via an existing road reserve less than 15m in width.

Road reserve width of 20m.

Yes

Turning area to comply with Austroads and Council’s adopted engineering standards.

A turning area should be constructed at the end of the roadway.

Yes

Kerb and gutter required for full length of road frontage to subdivision.

Suitable conditions will be imposed to kerb and gutter.

Main Arm Road will require half road construction to provide a pavement width of 11m. Kerb and gutter, road pavement and drainage construction will be required for the frontage of proposed lot 4. The access driveway servicing the existing dwelling should be upgraded to Council’s current standards.

Yes

Road shoulders to be sealed.

N/A

N/A

Splays will be required at road intersections.

Splays are proposed.

Yes

Constructed road access to be provided from nearest constructed road to all allotments.

Each allotment will have constructed road access available to their frontage.

Yes

Service conduits/road crossings to be provided prior to construction of kerb and gutter.

Suitable conditions will be imposed.

Yes

 

Chapter 1 Part B6.2 – Footpath and Nature Strip

 

Prescriptive Measure

Proposed

Complies

Width, grades and materials of footpath to be in accordance with disability standards.

Suitable conditions will be imposed to ensure footpath construction is compliant.

Yes

Footpath to be provided on at least one side of road for local access roads or minor access roads.

A footpath is not considered necessary for these four lots due to the low volumes of vehicular traffic and the desire line would be on the other side of the road (ie the road carriageway can be shared between pedestrians and vehicles).

No, but consistent with adopted engineering standards.

Nature strip must be minimum 3.5m wide for local roads

6m wide nature strip is proposed.

Yes

Minimum nature strip width must not be used to reduce road reserve width.

Road reserve width consistent with adopted engineering standards.

Yes

 

Chapter 1 Part B6.3 – Access Design

 

Access driveways to the proposed allotments will be required to be constructed with future dwellings. The proposed mountable kerb and gutter allows for flexibility in the future location of access driveways.


 

Development Control Plan Chapter 11 – Mullumbimby

Development Control Provision

Development Control Requirement

Proposed

Compliance

Section 2 – OBJECTIVES OF THE PLAN

(a)    to enhance the character and amenity of Mullumbimby as a rural township and ensure that new development compliments the towns.

The proposed subdivision does not conflict with this provision. Future residential development on the allotment would need to meet these requirements.

Yes

 

(b)    to take advantage of the variety of topography, aspect, views and water course in providing a variety of residential development forms and densities, including innovative small lot and cluster housing and medium density housing in appropriate locations, to give character to the new release areas.

The proposal utilizes land that is elevated above the Chinbible Creek flats and the flood prone land. The land proposed for the four residential lots is mostly zoned residential with the small area of rural 1(a) zoned land having little agricultural value.

Yes

 

(c)    to provide an upgraded, economic, safe and convenient road and movement system to minimise congestion, integrated with the walkway/ bikeway system.

The proposal makes use of an existing road system.

Yes

 

(d)    to ensure efficient and cost effective provision of engineering works and services for new development to achieve minimum construction and maintenance costs.

The proposal does not conflict with this objective.

Yes

 

(e)    to provide an upgraded network of public open space based primarily on the river park system and integrated with the walkway/ bikeway system to meet the needs of the expanding town.

The proposal does not conflict with the open space system detailed within the DCP maps.

Yes

 

(f)     to provide realistic guidelines for the growth of commercial and non-residential uses to support the increasing population and respond to tourism opportunities.

No commercial or non-residential uses are proposed.

Yes

 

(g)    to establish guidelines to ensure new development involving buildings of conservation significance sympathetic to the heritage character with realistic criteria for extensions, alterations and infill development in terms of scale, detailing, design, materials, signage, etc.

The proposal has no impact on buildings of conservation significance.

Yes

 

(h)    to make provision for upgrading of community and recreation facilities to meet the needs of the growing population.

The levying of Section 94 Contributions would satisfy this objective.

Yes

 

(i)      to facilitate the orderly and staged development of the town.

The proposal is consistent with this objective.

Yes

 

(j)      to ensure that new development does not intrude on important landscape elements such as ridgelines.

The proposal does not intrude on any ridgeline, but is located adjacent to a small creek. The allotment layout requires asset protection zones that would intrude on this creek.

Yes

 

(k)    to ensure that new development avoids constrained land such as steeply sloping areas or flood liable land.

The proposed residential lots are near level and generally above the 1:100 year flood level.

Yes

 

(l)      to lay the framework for future access and services to potential future housing area and environmental management of these areas as a basis for future rezoning consideration in response to genuine demand for housing.

The site of the proposed residential allotments is currently within the 2(a) Zone. Access is available to all proposed allotments from Chinbible Avenue.

Yes

Section 6 - ROADS AND MOVEMENT SYSTEMS

This Section of the DCP sets out road location criteria, design and construction standards, intersection requirements and pedestrian/cycleway paths.

Access

Access to the proposed allotments will be via a Chinbible Street.

Existing Road Network, Traffic Volumes and Speeds

Chinbible Street comprises two traffic lanes and is subject to a speed limit of 50km/hr. The estimated traffic in Chinbible Street is 19 dwellings x 9 trips = 171 vpd.

Council’s 2009-2010 traffic count for Main Arm Road was 1745 vpd

 Intersection Sight Distance

The Chinbible Road is within an area with a speed limit of 50 km/hr. A minimum sight distance of 97 metres is required for a speed of 50 km/hr. This sight distance is exceeded to the west and is in the order of 93 metres to the east.

 

S94 Contributions apply

Yes

Section 7 - URBAN SERVICES

This Section of the DCP sets out the requirements for water supply, sewerage, stormwater, waste management and electricity and telephone.

The specific requirements of Section 7 are addressed below.

Refer to rows below.

7.1 – Water Supply

Water is to be provided to all lots within urban zones.  Satisfactory arrangements shall be made with Council before lodgement of any application for subdivision.

Augmentation of the water supply required to cater for the developments covered by this DCP will be provided as part of Council’s adopted Works Program and will be funded by the adopted section 94 headworks contributions.

Internal reticulation and metering is to be provided by the developer using an approved contractor.  All works are to be carried out under the supervision of Council in accordance

The site is connected to Councils reticulated water supply.

Yes

7.2 - Sewerage

Augmentation of the treatment works, pump stations and rising mains as required to cater for the developments covered by this DCP will be provided as part of Council’s adopted Works Program and will be funded by the adopted section 94 headworks contributions per allotments created.

Sewer is to be provided to all lots within urban zones.  Satisfactory arrangements shall be made with Council before lodgement of any application for subdivision.

Reticulation is to be provided by the developer using an approved contractor.  All works are to be carried out under the supervision of Council in accordance with approved plans.

The existing residence is currently not connected to Council Sewerage System, but when the new lots are created the residual lot will be within 75 metres of the Sewerage System and as such will be eligible to pay sewer fixed rates without the benefit of connection.

By imposing a Section 64 contribution for sewerage on the residual rural lot it will allow the existing residence to connect to Council sewerage system and to gain a benefit from the fixed sewer charges that they will incur whether they are connected or not.

.

Yes

7.3 - Stormwater

Reference is made to Section 7.3 (Drainage) of DCP No. 1 (Part B) – Subdivision for requirements.  Maximum use is to be made of unsealed surfaces to retain stormwater surcharge with design of drainage easements and system to the specific standards in Council’s Specification for Engineering Works.

For overland flow design, all swales shall provide for the 1% flood event and design of road drainage and piped drainage system and structures are to be designed to provide for flows of the 5 year recurrence event.

A preliminary stormwater management plan (SWMP) has been prepared for the subdivision. The applicant proposes on site detention in rain water tanks.

 

Yes

7.4 – Waste Management

Contributions will be required from urban and rural residential subdivision developments to provide a future waste management facility in the location decided by Council.

Chinbible Avenue is serviced by Council’s kerbside waste collection service.

Yes

7.5 - Electricity

Underground electricity reticulation is required for urban developments.  Written evidence of satisfactory arrangements with Northpower will be required and adequate easements are to be provided as required by Northpower.

Satisfactory arrangements can be made in this regard.

Yes

7.6 – Telephone

Adequate easements are to be provided to ensure that telephone facilities may be installed. Written evidence from Telstra is to be submitted indicating that the proposed subdivision can be served by telephone.

Telephone services are to be underground wherever practical with common trenching for water supply, Telstra and electricity reticulation.

Satisfactory arrangements can be made in this regard.

Yes

 

3.4       The likely impacts of that development, including environmental impacts on both the natural and built environments, and social and economic impacts in the locality

 

Subject to consent conditions and deletion of proposed Lot 1 the subdivision is unlikely to result in significant impacts on the natural and built environments.  The proposed subdivision is unlikely to result in negative social and economic impacts in the locale.

 

3.5       The suitability of the site for the development

 

The site is fully serviced or capable of being.  Sewer is available to the proposed lots.

 

3.6       Submissions made in accordance with this Act or the regulations

 

There were 0 submissions made on the development application.

 

3.7       Public interest

 

The proposed development is considered to be consistent with the public interest.

 

4.         DEVELOPER CONTRIBUTIONS

 

4.1       Water & Sewer Levies

 

This land is currently zoned as part 2(a) and part 1(a) and has a 1 ET entitlement to water only, as no sewerage is currently available to the site.

 

The proposed development will create 3 residential lots and a residual rural allotment. The 3 new residential lots are currently vacant, while the residual lot will contain an existing residence.

The water and sewerage load from the proposed development is 4 ET for Water and 45 ET for Sewerage.

 

Water and Sewerage

 

 

 

Development

Number

ET Rate

ET

Residential Lot 2(a)

3

1

3

Rural Lot 1(a)

1

1

1

 

 

 

4

 

The existing residence is currently not connected to Council Sewerage System, but when the new lots are created the residual lot will be within 75 metres of the Sewerage System and as such will be eligible to pay sewer fixed rates without the benefit of connection.

 

By imposing a Section 64 contribution for sewerage on the residual rural lot it will allow the existing residence to connect to Council sewerage system and to gain a benefit from the fixed sewer charges that they will incur whether they are connected or not.

 

The proposed development generates an additional Water load of 4.0 – 1.0 = 3 ET.

The proposed development generates an additional Sewer load of 4.0 ET.

 

Council can supply water and sewerage to the proposed development on payment of Developer Servicing Charges.

 

These figures are at today’s date.

 

INDICATIVE CHARGES PURSUANT TO THE WATER MANAGEMENT ACT, 2000

 

 

(Office Use Only)

 

 

 

 

 

Water

(S64W Mull)

3.00

ET @

$8,225.87

=

$24,677.60

Bulk Water

 

 

 

 

=

 

Sewer

(S64S Other)

4.00

ET @

$9,732.66

=

$38,930.62

 

 

 

 

Total

 =

$63,608.22

 

4.2       Section 94 Contributions

 

RESIDENTIAL DEVELOPMENT

SCHEDULE OF CONTRIBUTIONS PURSUANT TO SECTION 94 OF THE ENVIRONMENTAL PLANNING AND ASSESSMENT ACT, 1979

 

 

 

(Office Use Only)

 

 

 

 

 

Community and Cultural Facilities

(CF-ML)

3.00

SDU @

$1,112.01

=

$3,336.04

           " - Shire Wide

(CF-SW)

3.00

SDU @

$603.98

=

$1,811.95

Open Space

(OS-ML)

3.00

SDU @

$2,951.86

=

$8,855.58

      " - Shire Wide

(OS-SW)

3.00

SDU @

$3,042.84

=

$9,128.51

Roads

(R-ML)

27.00

trips @

$823.89

=

$22,244.97

Cycleways

(CW-ML)

3.00

SDU @

$776.41

=

$2,329.24

Civic & Urban Improvements

(IM-ML)

3.00

SDU @

$1,589.28

=

$4,767.84

Rural Fire Service

-

 

 

 

=

 

Surf Lifesaving

(SL-ML)

3.00

SDU @

$29.62

=

$88.85

Administration

(OF-SW)

3.00

SDU @

$820.23

=

$2,460.69

 

 

 

 

Total

 =

$55,023.67

 

5.         CONCLUSION

 

The proposed subdivision involves two existing allotments legally described as Lots 196 and 197 in DP 755687 have a combined area of 3.855 hectares.

The applicant seeks development consent to subdivide the two existing allotments making up the site into three (3) residential allotments to accommodated future dwellings, and one (1) residual allotment that will accommodate the existing dwelling. The areas of the proposed allotments are described below:

Lot 1 = 946.8m2  (not supported)

Lot 2 = 603.0m2

Lot 3 = 804.4m2

Lot 4 = 1,162.5m2

Lot 5 = 3.68 hectares

 

The majority of the land, the land that will comprise Lot 5 and the existing dwelling is within Zone 1(a) – General Rural.  The four proposed residential allotments, Lots 1 to 4, are located mostly within Zone 2(a) Residential Zone

 

Proposed Lots 1 to 4 have frontage to, and are to be accessed from, Chinbible Avenue. The dwelling-house located within proposed Lot 5 will continue to have access from Main Arm Road.

A previous application proposed a similar subdivision, however that application included areas of flood prone land and riparian corridors and was refused for potential impacts to and from those constraints.  This application has addressed those concerns for proposed lots 2-4 however under the conditions of the NSWRFS Bushfire Safety Authority, Lot 1 would require the implementation of an Asset Protection Zone within the riparian corridor of Chinbible Creek.  Subsequently proposed Lot 1 is not supported.

 

Apart from proposed Lot 1 the proposal is in accordance with all relevant state and regional planning instruments and apart from a variation to Clause 11 with Byron LEP 1988. The proposal is in accordance with Byron Development Control 2010 requirements.

 

The subdivision is lawful development, and is in the public interest as it will create three additional residential lots.

 

Subject to the deletion of proposed Lot 1 and the recommended consent conditions the application is considered worthy of support.

 

6.         RECOMMENDATION

 

That pursuant to Section 80 of the Environmental Planning & Assessment Act 1979, development application 10.2011.319.1 for subdivision to create three residential lots and one residual rural lot, be granted consent subject to the conditions listed in the Annexure.

 


 

7.         DISCLOSURE OF POLITICAL DONATIONS AND GIFTS

 

Has a Disclosure Statement been received in relation to this application

No

Have staff received a ‘gift’ from anyone involved in this application that needs to be disclosed. Where the answer is yes, the application is to be determined by the Director or Manager of the Planning, Development and Environment Division.

No

 

 

 

 

Report No. 12.26.

PLANNING – 10.2011.359.1 - Consent Conditions 1 Mullumbimby Road, Myocum

Executive Manager:   Environment and Planning

File No:                        238710 #1179783

 

Principal Activity:

 

Environment and Planning

Summary:

 

Council resolved at the Ordinary meeting held 15 December 2011 a report be presented back to Council to the Ordinary meeting to be held on 9 February 2012 with consent conditions to approve a 2 lot subdivision at 1 Mullumbimby Road, Myocum.

 

 

NOTE TO COUNCILLORS:

 

In accordance with the provisions of S375A of the Local Government Act 1993, a Division is to be called whenever a motion for a planning decision is put to the meeting, for the purpose of recording voting on planning matters.  Pursuant to clause 2(a) under the heading Matters to be Included in Minutes of Council Meetings of Council's adopted Code of Meeting Practice (as amended) a Division will be deemed to have been called by the mover and seconder of all motions relating to this report.

 

 

RECOMMENDATION:

 

That, as per Resolution 11-1066, Council grant consent to Development Application 10.2011.359.1 for a two lot subdivision subject to the consent conditions listed in Annexure 9(a) (#1183148).

 

 

Attachments:

 

·       Conditions of consent #1183148 [5 pages]....................................................................... Annexure 9(a)

·       Plan of Proposed Subdivision #1183377 [1 page]............................................................ Annexure 9(b)

·       Plan 2 HCV Area #1183288 [1 page] ................................................................................ Annexure 9(c)


Report

 

Council Resolution 11-1066 resolved:

 

that pursuant to Section 80 of the Environmental Planning & Assessment Act 1979, development application 10.2011.359.1 for two (2) lot subdivision be approved with draft conditions of consent referred to Council's 9 February 2012 Ordinary Meeting. (Tucker/Woods)

 

 

 

Report No. 12.27.

PLANNING - 10.2011.191.1 s82A Review - Use of part of the tourist premises for up to 14 functions annually - Limited to a maximum of 70 guests per function - 6/137 Beach Road, Broken Head

Executive Manager:   Environment and Planning

File No:                        240572 #1187269

 

 

NOTE TO COUNCILLORS:

 

In accordance with the provisions of S375A of the Local Government Act 1993, a Division is to be called whenever a motion for a planning decision is put to the meeting, for the purpose of recording voting on planning matters.  Pursuant to clause 2(a) under the heading Matters to be Included in Minutes of Council Meetings of Council's adopted Code of Meeting Practice (as amended) a Division will be deemed to have been called by the mover and seconder of all motions relating to this report.

 

 

RECOMMENDATION:

 

That Council confirm the previous determination by refusing development consent for the following reason:

1.    Pursuant to section 79C (1)(a)(i) of the Environmental Planning and Assessment Act 1979 the proposed development constitutes prohibited development pursuant to Clause 9(2) and the development control table of the 2(t) Tourist Area Zone within Byron Local Environmental Plan 1988.

2.    Pursuant to section 79C(1)(b) and 79C(1)(c) of the Environmental Planning and Assessment Act 1979 the proposed development is likely to result in unacceptable noise and disturbance for neighbouring residents/occupants.

3.    Pursuant to section 79C (1)(a)(iii) of the Environmental Planning and Assessment Act 1979 the proposed development does not provide sufficient onsite parking or a service vehicle area to accord with Chapter 1 Part G of Byron Development Control Plan 2010.

 

4.    Pursuant to Section 78A(1) of the Environmental Planning and Assessment Act 1979 the proposed development application has not been accompanied by evidence that the owner of the land on which the development is to be carried out provides consents to the application (owners of Strata Plan 81554).

 

Attachments:

 

·       Cover Letter from Rob Doolan to S82A form #1188848 [1 page]...................................... Annexure 24(a)

·       Supplementary Report addressing late information #1190923 [6 pages]........................... Annexure 24(b)

 


Report

 

The subject development application was refused by Council on 2 November 2011 for the following reasons:

1.    Pursuant to section 79C (1)(a)(i) of the Environmental Planning and Assessment Act 1979 the proposed development constitutes prohibited development pursuant to Clause 9(2) and the development control table of the 2(t) Tourist Area Zone within Byron Local Environmental Plan 1988.

2.    Pursuant to section 79C (1)(a)(i) of the Environmental Planning and Assessment Act 1979 the proposed development is considered to be inconsistent with the objectives of 2(t) Tourist Area Zone and therefore contrary to Clause 9(3) of Byron Local Environmental Plan 1988.

3.    Pursuant to section 79C(1)(b) and 79C(1)(c) of the Environmental Planning and Assessment Act 1979 the proposed development is likely to result in unacceptable noise and disturbance for neighbouring residents/occupants.

4.    Pursuant to section 79C (1)(a)(iii) of the Environmental Planning and Assessment Act 1979 the proposed development does not provide sufficient on-site parking or a service vehicle area to accord with Chapter 1 Part G of Byron Development Control Plan 2010.

 

5.    Pursuant to Section 78A(1) of the Environmental Planning and Assessment Act 1979 the proposed development application has not been accompanied by evidence that the owner of the land on which the development is to be carried out provides consents to the application (owners of Strata Plan 81554).

 

Issues addressed in the revised submission

 

Following the submission of the subject section 82A application on 8 December 2011 Council wrote to the applicant requesting details as to how the reasons for refusal have been addressed dated 16 December 2011. At the time of writing this report, no additional information has been provided and no attempt has been made to address the reasons for refusal of the subject development application.

The following has been revised in relation to the development application:

The refused development application applied for the following:

-        Use of part of the Tourist premises for up to 18 functions (weddings and the like) annually with a limit of a maximum of 70 guests per function.

The section 82A application subject to this report amends the application so as to apply for the following:

-        Use of part of the tourist premises for up to 14 functions (weddings and the like) annually with a limit of a maximum of 70 guests per function – all functions to cease by 9pm and all functions not allow amplified music or DJ speakers.

The amendments to the application have failed to address all the reasons for refusal of the development application and a number of matters remain outstanding. Further discussion is provided below in relation to the perceived issues with the application:

Permissibility

The applicant has submitted their own legal advice asserting, in part:

 

“the use of only one townhouse within an approved seven townhouse tourist resort for the purposes of guests holding relatively small functions for a maximum of 18 days per year, where the use is sanctioned by the larger resort and has the purpose of drawing guests to the facility, is consistent with the approved tourist facility”.

 


The previous assessment report stated the following in relation to permissibility:

 

As part of development consent 96-04-2005 consent was given specifically for “Demolition of existing structures and redevelopment of the existing tourist facility to incorporate seven (7) x two bedroom holiday cabins and one (1) x two bedroom managers cabin over two stages”

 

The proposed use of an individual ‘holiday cabin’ for the purposes of holding functions which are not sanctioned by the larger accommodation complex is not considered to be a use which can reasonably be asserted to be ancillary to the larger holiday accommodation. The proposed use is considered to predominantly stand alone and therefore is most appropriately defined as a ‘commercial premises’ for the purposes Byron LEP 1988. A ‘commercial premises’ is a use which is prohibited within the 2(t) Tourist Area Zone.

 

What must be considered is the existing approval for the subject site in regards to the scope and definition of what was approved. If the existing approval was for ‘holiday cabins’ then it is doubtful that the proposed use could be ancillary to this use and would act as a stand alone use which is consistent with the findings of the assessment report. However, if the approved use onsite was for a ‘tourist facility’ then there is a possibility you could argue the permissible nature of the use due to it being ancillary to the overall ‘tourist facility’.

 

Development consent 96-04-2005 issued by the Department of Planning issued development consent for the following:

 

Development consent is granted only to carrying out the development described in detail as

follows:

 

a)    Two (2) lot Torrens title subdivision creating 1.133ha lot and a residue lot of

21.57ha;

b)    Demolition of existing structures and redevelopment of the existing Broken Head tourist facility to incorporate seven (7) x two bedroom holiday cabins and one (1) x two bedroom managers cabin over two (2) stages;

c)    Strata title subdivision of the tourist facility proposed on Lot 1;

d)    Removal of selected trees identified in the submission; and

e)    Associated landscaping and rehabilitation plan.

 

Unfortunately the wording of the above development consent is ambiguous as it states both ((7) x two bedroom holiday cabins) but also (strata title subdivision of the tourist facility proposed).

The definition of a tourist facility can include holiday cabins and this seems to be the intent of the application, a number of conditions within the development consent also refer to a ‘tourist facility’ and are detailed as follows:

“B7 Number of Car Spaces

The maximum number of car spaces to be provided for the development shall comply with the table below. Details confirming the parking numbers shall be submitted to the satisfaction of the Certifying Authority prior to the issue of a Construction Certificate.

 

Car parking allocation Number

Number of tourist facility car spaces 16.

 

C21. Managers Residence

The managers dwelling approved on proposed community lot 1 is approved as the manager’ s residence only and is not to be separately leased/rented or used for tourist accommodation purposes.

 


C22. Use of Tourist Accommodation Buildings and Section 88E Instrument

Requirement.”

 

Taking consideration the way the development consent is structured, what is/was approved on the site is a ‘tourist facility’, the definition of a tourist facility is as follows:

tourist facilities means an establishment providing holiday accommodation or recreation and may include a boat shed, boat landing facility, holiday cabin, hotel, house-boat, marina, motel, playground, primitive camping ground, restaurant, water sport facility or a club used in conjunction with any such facility.

 

The question that must be answered is whether the proposed use ‘function centre for weddings’ fits within the above definition. The applicant presents the following argument in the Statement of Environment Effects submitted in support of the proposal:

 

“The proposed use, periodic functions for guests within the approved tourist accommodation, is a permissible land use of the site”

 

The issue with the above statement is that the functions are not necessarily for guests within the approved tourist accommodation, the majority of the (70) guests would not be staying within the ‘tourist facility’ and the ‘tourist facility’ does not operate as a single entity as it has been strata subdivided. Whilst there may be a possibility that the proposal is not prohibited, the applicant has not demonstrated that this is the case and therefore the proposed use is deemed to be prohibited until proven otherwise.

Zone Objectives of the 2(t) Tourist Area Zone

 

The objectives of the zone are as listed below:

 

(a)  to identify land for tourist infrastructure and to encourage tourist accommodation and facilities,

 

(b)  to permit tourist development and uses associated with, ancillary to, or supportive of, tourist developments including retailing and service facilities where such facilities are an integral part of the tourist development and are of a scale relative to the needs of that development, and

 

(c)  to control by means of a development control plan the location, form, character and density of permissible development.

 

Tourist facilities are permissible within the subject zone but dwellings are prohibited. Whilst the proposed use could be defined as being consistent with the zone objectives and that this particular zone is a suitable zone for such a use, the uses within the site (as consented to by the department) are not consistent with the subject zone objectives. This conclusion is reached as the context of the subject ‘tourist facility’ included strata subdivision, this has created a use which is vastly more residential in nature then what would typically be classified as a ‘tourist facility’.  As such the adverse impacts created by the current proposal are significantly enhanced as a result of the impacts on the residential nature of the current use. Despite the adverse impacts identified above, the proposed use is considered to be consistent with the zone objectives of the Tourist Area Zone.

 

Unacceptable noise and disturbance for neighbouring residents/occupants.

 

The conclusion of the previous assessment in relation to noise disturbance is detailed below:

“In conclusion the information provided to date indicates that the proposed development cannot be supported by Council’s EHO.  However in the absence of sufficient technical information a complete assessment of potential acoustic impacts is not possible.  It is recommended that the applicant be afforded the opportunity to respond to the comments prepared by the Council’s EHO.  Consideration of any additional information should then be undertaken before finalising the environmental assessment.”

The section 82A application subject to this report has not been supported by any additional information in relation to this issue. Whilst the application has been amended from an ‘acoustic impact’ perspective’ by modifying the following: “all functions to cease by 9pm and all functions not allow amplified music or DJ speakers”, the changes have not been supported by the provision of any additional technical information and therefore Council’s concerns in relation to noise disturbance remain as detailed in the previous assessment report.

Onsite parking and service vehicle areas to accord with Chapter 1 Part G of Byron Development Control Plan 2010

The assessment of the previous application included the following:

 

“When assessed in accordance with the DCP Part G Vehicle Circulation and Parking at a rate of 3 persons per car space, this development for 70 patrons will create a demand for 70/3 = 24 car spaces.

 

The applicant is only proposing to provide 2 spaces plus a space for disabled persons.

 

Spaces Required          =          24       

Spaces Proposed         =          2 plus a space for disabled persons

 

The SEE does not specify where the patrons will park their vehicles. Additional information has been provided that some patrons will use the Suffolk Park Motel and then taxi/bus to the venue but the applicant has not joined/included the Motel as part of this DA.

 

Service and Garbage Areas DCP Element G2.4”

 

Service area must be physically a defined location, screened from public view, and not used for purposes other than servicing, loading and unloading.

Does not comply. No service area proposed.

Service area layout  must facilitate its efficient use and must effectively discourage on-street loading and unloading

Does not comply. Loading is proposed on the internal roads

Requirements for storage and collection of waste must be taken into account in service area design

Does not comply. Waste is proposed to be stored in the garage where tenants park their vehicles

All service vehicles must be able to enter and leave the site in a forward direction ie. Adequate manoeuvring space is required on site.

Has not been demonstrated for a MRV. A SRV can enter and leave in a forward direction.

Internal roadways must be of a size adequate for the largest vehicle anticipated to use the site

Has not been demonstrated. Roads have been constructed for holiday accommodation units, not commercial use.

Where possible, service vehicle movements must be separated from car movements

Has not been demonstrated.

No additional information has been provided in relation to onsite car parking or service vehicle areas, as such the concerns raised in the previous report in relation to the provision of onsite car parking and service vehicle areas are still justifiable reasons for refusal.

The proposed development application has not been accompanied by evidence that the owner of the land on which the development is to be carried out provides consents to the application


The issue of owners consent remains outstanding. The section 82A application has not attempted to address this issue. It is likely that the proposal relies on common property for the storage of vehicles and goods (catering, entertainment etc) that are required for the proposed use. Any common property that is required for the proposed use would require the consent of the body corporate which has not been provided in this instance.

The application has not demonstrated that it does not rely on the common property, as such it is recommended that this application be refused on this basis.

 

Section 82A of the Environmental Planning and Assessment Act 1979

 

(1)   If the consent authority is a council, an applicant may request the council to review a determination of the applicant’s application …  

 

(2)   A council must, on a request made in accordance with this section, conduct a review.

 

A review is being conducted as per the request.

 

(2A) A determination cannot be reviewed:

(a)   after the time limited for the making of an appeal under section 97 expires, if no such appeal is made against the determination, or

(b)   after an appeal under section 97 against the determination is disposed of by the Court, if such an appeal is made against the determination.

 

The original application was refused by Council 2 November 2011and this section 82A application was lodged 8 December 2011, as such the application was lodged within the six (6) month time frame.

 

(3A) In requesting a review, the applicant may make amendments to the development described in the original application, subject to subsection (4) (c).

 

The refused development application applied for the following:

-        Use of part of the Tourist premises for up to 18 functions (weddings and the like) annually with a limit of a maximum of 70 guests per function.

The section 82A application subject to this report amends the application so as to apply for the following:

-        Use of part of the tourist premises for up to 14 functions (weddings and the like) annually with a limit of a maximum of 70 guests per function – all functions to cease by 9pm and all functions not allow amplified music or DJ speakers.

(4)   The council may review the determination if:

(a)   it has notified the request for review in accordance with:

(i)    the regulations, if the regulations so require, or

(ii)   a development control plan, if the council has made a development control plan that requires the notification or advertising of requests for the review of its determinations, and

                                                    

The application was notified in accordance with DCP 2010 and six (6) objections were received in relation to the application.

 

(b)   it has considered any submissions made concerning the request for review within any period prescribed by the regulations or provided by the development control plan, as the case may be, and

 

The application was publicly exhibited from 5 January 2012 to 18 January 2012 and six (6) submissions were received in response to the development application.

 

Issue

Comment

Functions result in excessive noise and disturbance for neighbouring occupants or residents.

 

The applicant has not submitted adequate information to demonstrate the proposed use will not result in unacceptable noise and disturbance to neighbouring occupants and residents. The subject site has a history of complaints being received by Council in response to functions being held on the premises.

Pavilions contains holiday dwellings and lack facilities necessary for such events and sound insulation required for commercial venues. They are constructed as minimalist open air structures and any noise flows unhindered into neighbouring houses in close proximity.

 

It is acknowledged that the subject holiday accommodation structures have large retractable doors which do incorporate appropriate sound insulation for the proposed commercial use. The use of the garden area of the property for functions without any acoustic enclosure is also considered likely to result in unacceptable noise impacts on neighbouring properties including the adjacent dwelling on Lot 103.   

Commercial functions and weddings already being held on a regular basis (up to one or two per week). Inadequate refuse disposal facilities.

 

Concerns regarding unauthorised commercial functions being held on the premises are acknowledged and it is understood that Council Compliance Team have been conducting investigations and taking enforcement action in that regard. Council’s Environmental Officer has raised no objection with regard to the proposal and management of waste subject to conditions (should the application have been considered favourably).

 

Litter and noise - Wedding parties on almost every occasion migrate through the property to the beach (via a bush track and over sand dunes) bringing with it party hire tables and chairs, streamers and confetti, balloons, plastic glasses etc.

 

The application does not seek development consent for the holding of functions on the beach at Broken Head. No evidence has been submitted to demonstrate the proposal will increase litter outside the venue.   

No available visitor parking proposal does not satisfy Part G of Council’s DCP 2010. 

 

The proposal does not provide on-site parking and does not comply with the requirements of Council’s DCP 2010 (Chapter 1 Part G) as detailed within Section 4.3 of this report.

 

Increased traffic on Beach Road which is a narrow and winding road causing safety issues for pedestrians and other road users.

 

Concerns are raised regarding the proposed internal access arrangements however it is considered unlikely the additional traffic generated by the proposal would be beyond the capacity of Beach Road.

Not designed for loading and unloading for commercial functions.

 

The proposal does not seek to provide a service vehicle bay for the loading and unloading of goods required for functions. Service vehicle arrangements have not been provided to comply with Council’s DCP 2010 (Chapter 1 Part G). It is also noted that a suitable on site parking area for a bus to pick up and drop off guests has not been provided.

 

Access is regularly blocked before, during and after events by catering vans, party hire table and chairs, alcohol deliveries, temporary tent/marquees hire, function staff, guest buses and cars, large portable refrigeration units, extension leads running across internal access roads, fire trails and local roads etc.

 

A suitable on site parking area for a bus to pick up and drop off guests has not been provided. The proposal does not provide on site car parking for guests and a service vehicle bay for deliveries. The parking of a bus and service vehicles in the internal access road are likely to obstruct the vehicles of guests staying in other holiday cabins and the residents of dwellings which gain vehicular access through the site.   

Inadequate sewerage facilities to cope with the additional load.

 

Should the application have been considered favourably the payment of Developer Servicing Charges would have been required to facilitate sewerage services for the development.

The surrounding environmentally sensitive wetlands and littoral rainforest contain nocturnal animals affected/stressed by the crowds of people, noise, loud music, lights, fireworks etc. 

 

The applicant has not provided details of any additional external lighting that is required to facilitate the functions. Should the application have been considered favourably further information would have been requested from the applicant with regard to lighting and noise and the impacts on the natural environment.  

 

(c) in the event that the applicant has made amendments to the development described in the original application, the consent authority is satisfied that the development, as amended, is substantially the same development as the development described in the original application.

 

The application is considered to be substantially the same development as the development described in the original application.

 

(4A) As a consequence of its review, the council may confirm or change the determination.

 

It is recommended that Council confirm the previous determination by refusing development consent..

 

Additional Information

 

Late information, received by Council on 25 January 2012 by email, is addressed in a Supplementary Report Annexure 24(b) (#1190923).

 

Conclusion

 

Having reviewed the history of the site, the previous assessment and the information now provided, it is recommended that the section 82A application to review the determination of 10.2011.191.1 should be refused for the reasons identified in the above report.

 

 

 

Report No. 12.28.

PLANNING – DA 10.2010.576.1 Beaches of Byron Caravan Park at 5-37 Broken Head Road, Byron Bay

Executive Manager:   Environment and Planning

File No:                        111720 #1188148

 

Summary:

 

Council resolved at the Ordinary meeting held on 15 December 2011 the following:

 

11-1066 Resolved that Council defer this matter to the 9 February 2012 Ordinary Meeting.

 

 

NOTE TO COUNCILLORS:

 

In accordance with the provisions of S375A of the Local Government Act 1993, a Division is to be called whenever a motion for a planning decision is put to the meeting, for the purpose of recording voting on planning matters.  Pursuant to clause 2(a) under the heading Matters to be Included in Minutes of Council Meetings of Council's adopted Code of Meeting Practice (as amended) a Division will be deemed to have been called by the mover and seconder of all motions relating to this report.

 

 

RECOMMENDATION:

 

That pursuant to Section 80 of the Environmental Planning & Assessment Act 1979, development application 10.2010.576.1 for proposed modifications to layout and facilities of an existing approval to operate a caravan, camping, and relocatable cabin park, be refused for the reasons specified in Annexure 8(d) (#1189894).

 

 

Attachments:

Locality Map

 

·       Proposed Site Plan #1168101 [1 page]............................................................................. Annexure 8(a)

·       Existing Local Government Act approval Site Plan #665843 [1 page]................................. Annexure 8(b)

·       Letter from landowner’s legal representative #1031665 [1 page]......................................... Annexure 8(c)

·       Reason for refusal #1189894 [1 page].............................................................................. Annexure 8(d)

 


DA No:

10.2010.576.1

Proposal:

Proposed modifications to layout and facilities of an existing Caravan Park.

Property description:

Lot 9 DP 708338

5-37 Broken Head Road Byron Bay

Parcel No/s:

111720

Applicant:

Thinktank Architects

Owner:

Zandata Pty Ltd

Zoning:

Zone No. 1(d) - Investigation Zone / PART 7(a) - Wetlands Zone / PART 7(b) - Coastal Habitat Zone

Date received:

11 November 2010

Integrated Development:

S100B Rural Fires Act

Public notification or exhibition:

Level 2 advertising under DCP 2010 Part 17 – Public Notification and Exhibition of Development Applications

Exhibition period: 2/12/10 to 15/12/10

No Submissions.

Other approvals (S68/138):

Roads Act (51); Stormwater (55); Water & Sewer (60)

Planning Review Committee:

Yes – 16 March 2011

Delegation to determination:

Council

Issues:

·         No Owner’s consent

Summary:

It is proposed to vary the design of an existing caravan park to change the mix of sites and the site layout, replace the administration building and amenities blocks and construct a new shop.

 

Background

Prior approvals that apply to the site date from 1972 when Building Approval No. 6.1972.34.1 approved a caravan park, motel and residence

The caravan park usage of the site has operated in a modified and expanded form under Local Government Act approvals since 1987. It currently operates under a Caravan Park approval for 53 Long-term sites, 71 Short-term sites and 130 campsites that operates until March 2012.

 

Prior application DA 10.2010.77.1 proposed a refurbishment of the site to result in the provision of 20 camp sites, 55 short-term sites and 120 long term sites. An assessment report recommending a refusal was placed on the agenda for Council’s Ordinary Meeting of 11 February 2010. The application was withdrawn prior to the Council meeting. The assessment report to that prior application supported a mix of sites comprising at least 65 camp sites and no more than one half of the dwelling sites as long-term sites.

 

Development Proposal

The current application proposes 78 long-term sites, 75 short-term sites and 60 camp sites, replacement amenities blocks and administration building and a shop. 

The proposed development decreases the number of camp sites and increases the number of dwelling-sites, i.e. sites on which self contained dwellings may be located, from 126 to 156 as compared with the current caravan park approval. The proposed distribution of sites is consistent with the position supported by Council officers in the report to Council in regard to the prior, withdrawn application for the redevelopment of the caravan park

The proposed development excludes the south eastern part of the site which contains a Coastal Cypress Forest and remnant Swamp Sclerophyll Forest from use for dwelling/camp sites or for recreation. This contrasts with the current Local Government Act approval that nominates this part of the site as “Recreation Area” and with the prior, withdrawn application that proposed development in this part of the site.

 

Prior report to Council’s Ordinary Meeting of Meeting of 15 December 2011

 

This application was initially reported to Council’s Ordinary Meeting of 15 December 2011. A refusal was recommended for reasons relating to lack of owner’s consent, lack of the required S100B bush fire safety authority, tree preservation and lack of detail re front landscaping and fencing.

In the days immediately prior to that Council Meeting, a bush fire safety authority was received and information that resolved other outstanding matters apart from owner’s consent.

                                                                            

Council resolved [Resolution 11-1065] that Council defer this matter to the 9 February 2012 Ordinary Meeting.

 

Assessment

 

The application has been assessed against relevant environmental planning provisions including those relating to local amenity and visual impact, ecological restoration and management, the capacity of the development to obtain the required approval under s68 of the Local Government Act, the requirement for a s100B authority under the Rural Fires Act and internal and external access. 

 

The application warrants approval on the merits. However, the application is not accompanied by the consent of the landowner.

 

Lack of landowner’s consent

The applicant is a consultant architect acting for the park operator who leases the site. The landowner’s legal representative has advised Council that the landowner does not consent to the application.

The absence of owner’s consent has the consequence that the application is recommended for refusal. The merit assessment of the application has involved negotiations to resolve outstanding issues except for that of owner’s consent which is a matter that is outside the scope of Council’s responsibility to address.

 

 

 

 

1.         INTRODUCTION

 

1.1       History/Background

 

BA 6.1972.34.1 for caravan park and motel and residence was approved by Council on 31 May 1972.

 

BA 6.1981.514.1 for New amenities block for caravan park was approved by Council on 9 September 1981.

 

Caravan Park/Camping Ground Licence dated 9 July 1987 issued by Council under section 289H of the NSW Local Government Act 1919.

 

Caravan Park/Camping Ground Approval dated 8 July 1994 issued by Council under section 68 of the NSW Local Government Act 1993.

 

Caravan Park/Camping Ground Approval 88.2002.6.1

 

Caravan Park/Camping Ground Approval 88.2002.6.1 renewed for 5 years on 27 March 2007

 

DA 10.2010.77.1 proposed Alteration and additions to existing Caravan Park to comprise 20 camp sites, 55 short-term sites and 120 long-term sites; remove one amenities building; upgrade existing amenities building; replace existing manager’s residence/administration building/shop with new buildings.

 

A report to Council’s Ordinary Meeting of 15 December 2011 was prepared. A refusal was recommended for the following reasons:

 

OWNER’S CONSENT

1.        Pursuant to section 79C(1)(e) of the NSW Environmental Planning and Assessment Act 1979, it is not in the public interest to grant a development consent in the circumstance that the owner of the land to which the development application relates has not granted consent to the development application and in the context that the landowner has formally advised Council that owner’s consent is not granted.

 

2.        Pursuant to section 79C(1)(e) of the NSW Environmental Planning and Assessment Act 1979, it is not in the public interest to grant a development consent in the circumstance that the owner of the land to which the development application relates has not granted consent to the development application and having regard to section 49(a)(1) of the NSW Environmental and Assessment Regulation 2000 that provides that a development application may be made by:

(a)   by the owner of the land to which the development relates, or

(b)   by any other person, with the consent in writing of the owner of the land.

 

BUSH FIRE SAFETY AUTHORITY

3.        Development consent can not be granted in the circumstance that the proposed development is integrated development pursuant to section 91(1) of the NSW Environmental Planning and Assessment Act 1979 which requires that a bush fire safety authority issued under section 100B of the NSW Rural Fires Act be obtained and given that no such authority has been obtained.

 

TREE PRESERVATION

4.        The proposed development does not comply with section 79C(1)(b) of the NSW Environmental Planning and Assessment Act 1979 having regard to the likely adverse impact on the coastal cypress trees located adjacent to the north-western boundary of the site caused by the proposed stormwater retention basin and associated road grading in the location of the trees.

 

In the days immediately prior to that Council Meeting, a bush fire safety authority was received and information that resolved other outstanding matters apart from owner’s consent.  Council resolved [Resolution 11-1065] that Council defer this matter to the 9 February 2012 Ordinary Meeting.

 

A report to Council’s Meeting of 11 February 2010 was prepared. The application was withdrawn on 11 February.

 

The report recommended a refusal to the application for the following reasons:

 

REASONS RELATING TO OWNER’S CONSENT

1.       Pursuant to section 79C(1)(d) of the NSW Environmental Planning and Assessment Act 1979, it is not appropriate to approve the application having regard to the public exhibition of the application from 26 March 2009 to 24 April 2009, the submission on behalf of the owner of the land to which the development application relates dated 24 April 2009 and the contents of that submission that objects to Council assessing the application without the landowner’s consent and objects to the application.

 

2.       Pursuant to section 79C(1)(e) of the NSW Environmental Planning and Assessment Act 1979, it is not in the public interest to grant a development consent in the circumstance that the owner of the land to which the development application relates has not granted consent to the development application.

 

3               Pursuant to section 79C(1)(e) of the NSW Environmental Planning and Assessment Act 1979, it is not in the public interest to grant a development consent in the circumstance that the owner of the land to which the development application relates has not granted consent to the development application and having regard to section 49(a)(1) of the NSW Environmental and Assessment Regulation 2000 that provides that a development application may be made by:

(a)     by the owner of the land to which the development relates, or

(b)     by any other person, with the consent in writing of the owner of the land.

 

REASONS RELATING TO ZONE 1(d) OBJECTIVES

4.       The proposed development does not comply with section 79C(1)(a)(i) of the NSW Environmental Planning and Assessment Act 1979 because of the failure of the proposed development to comply with clause 9 of the Byron Local Environmental Plan 1988 in regard to Zone 1(d) Objective (d) and Objective (f).

 

REASONS RELATING TO BYRON LOCAL ENVIRONMENTAL PLAN AIMS, OBJECTIVES & GUIDING PRINCIPLES

 

5.       The proposed development does not comply with section 79C(1)(a)(i) of the NSW Environmental Planning and Assessment Act 1979 because of the failure of the proposed development to satisfy clauses 2(1)(d), 2(2)(c) and clauses 2(3)(a), (b) and     (c) of the Byron Local Environmental Plan 1988 having regard to the proposed high conservation value vegetation removal and to the proposed encroachments on high conservation value land.

 

6.       The proposed development does not comply with section 79C(1)(a)(i) of the NSW Environmental Planning and Assessment Act 1979 because of the failure of the proposed development to satisfy clause 2A of the Byron Local Environmental Plan 1988 having regard to the proposed vegetation removal and to the proposed encroachments on remnant vegetation communities and fauna habitat.  

 

7.       The proposed development does not comply with section 79C(1)(a)(i) of the NSW Environmental Planning and Assessment Act 1979 because of the failure of the proposed development to satisfy clause 2A(c) of the Byron Local Environmental Plan 1988 having regard  to the inconsistency of the proposed development with sections 1.1, 1.2 and 3.1 of the  Byron Biodiversity Conservation Strategy.

 

OTHER REASONS

 

8.       The proposed development does not comply with section 79C(1)(a)(i) of the NSW Environmental Planning and Assessment Act 1979 because of the failure of the applicant to consider whether the subject site is contaminated pursuant to clause 7 of  State Environmental Planning Policy No. 55 Remediation of Land.

 

9.       The proposed development does not comply with section 79C(1)(a)(i) of the NSW Environmental Planning and Assessment Act 1979 because of the failure of the proposed development to satisfy clause 45 of the Byron Local Environmental Plan 1988 having regard to the failure of the applicant to satisfy Council that suitable stormwater drainage arrangements can be made in relation to the development.

 

10.     The proposed development does not comply with section 79C(1)(a)(i) of the NSW Environmental Planning and Assessment Act 1979 because of the failure of the application to satisfy clause 37(2)(d) of the Byron Local Environmental Plan 1988 and having regard to the strategic implications of the proposed development.

 

11.     The proposed development does not comply with section 79C(1)(a)(i) of the NSW Environmental Planning and Assessment Act 1979 having regard to the failure of the application to satisfy clause 37(3) of the Byron Local Environmental Plan 1988.

 

12.     The proposed development does not comply with section 79C(1)(a)(iii) of the NSW Environmental Planning and Assessment Act 1979 because of the failure of the proposed development to satisfy clause C 10.3 of the Byron Development Control Plan 2002 because of the failure of the applicant to submit a suitable landscape plan and having regard to the need for same given the proposed density and design of the development .

 

13.     The proposed development does not comply with section 79C(1)(a)(iii) of the NSW Environmental Planning and Assessment Act 1979 because of the failure of the proposed development to satisfy clause C 10.3 of the Byron Development Control Plan 2002 having regard to the proposed usage of sloping land with consequent environmental damage, the failure to protect existing vegetation and to the proposed repetitive layout unrelieved by landscaping.

 

14.     The proposed development does not comply with section 79C(1)(a)(iii) of the NSW Environmental Planning and Assessment Act 1979 because of the non compliance failure of the proposed development to satisfy clause N 2.1 of the Byron Development Control Plan 2002 having regard to the failure of the application provide sufficient information to assess whether the proposed stormwater management system is feasible.

 

15.     Pursuant to section 79C(1)(e) of the NSW Environmental Planning and Assessment Act 1979, it is not in the public interest to grant development consent to the application having regard to the above reasons

 

1.2       Scope of prior applications

 

BA 6.1972.34.1

 

This approved a caravan park and motel and residence

 

The report to Council in regard to the application states: The application before Council provides for 20 caravan stands each having individual shower and toilet accommodation, 30 caravan parking sites using communal facilities, 12 tent sites using communal facilities and 6 unit motel. In addition the application provides for a managers residence, a reception block and two amenities blocks together with a swimming pool, wading pool barbecue area, tennis courts and putting greens.

A Site Plan annotated as Job No. 37160 ASS:1195 B:514/81, prepared by Grace Bros, dated 16.2.72 is located in Council records. This plan is not endorsed however it contains the components of the development specified in the Council officers’ report to Council and can reasonably be considered as defining of the scope of BA 6.1972.34.1

 

BA 6.1981.514.1

 

This approved a New amenities block for caravan park. Council records contain a plan and elevations of an Amenities Block annotated B/A 514/81, prepared by Grace Bros and dated 20.2.72

 

Local Government Act Caravan Park/Camping Ground Licence dated 9 July 1987

 

This Licence specifies its scope as comprising 39 long-term residence sites, 61 Short-term residence sites and 154 Camp sites.

 

This Licence states that it was to…remain in force for a period of 12 months from the date of issue unless sooner or suspended and imposed as conditions:

 

  1. Subject to programme of works being lodged with Council by 1st September, 1987.
  2. Works agreed to be Council in that programme being institute as per that agreement

 

A Letter from Council to Canty & Williamson of 4 September 1987 states that …the programme of works provided by you to Council in respect to Crosby’s Caravan Curt has been perused by Council and found acceptable…has been forwarded to the Minister for Local Government for the Minister’s perusal. 

 

A site plan of Crosby’s Caravan Court annotated 1631 ASS:1195, prepared by Canty & Williamson depicts the site layout in a manner consistent with the scope of the Licence. This plan can reasonably be regarded as that associated with the Licence.

 

Local Government Act Approval to operate a Caravan Park/Camping Ground dated 8 July 1994

 

This approval states: This approval relates to a total of 254 sites and camp sites as referenced on Plan No. 4946 and amendment 88/154 identified as Crosbys Caravan Park.

 

The approval specifies its scope as comprising 53 long-term sites of which 22 contain Moveable dwellings with toilet & shower ensuites, 71 short-term sites of which 13 to contain Moveable dwellings with toilet & shower ensuites and 130 camp sites.

 

The Licence states: This approval relates to a total of 254 sites and camp-sites as referenced on Plan No. 4946 and amendment 88/154 identified as Crosby’s Caravan Park

 

Local Government Act approval 88.2002.6.1, renewed 27 March 2007

 

The approval states:

This approval relates to a total of 124 dwelling sites and 130 camping sites These sites comprise 53 Long term Sites, 71 short term sites and 130 campsites. The numbers, sizes and locations of all dwelling sites and campsites are specified in the community map identified by Reference No; Map #1 dated 27/03/2007 (Annexure 8(b)).

This approval shall remain in force for a period of five (5) years from the date of issue unless sooner or suspended.

Issued: 27 March 2007.

Expires: 28 March 2012.

 

1.3       Description of the site

 

The site is located on the eastern side of Broken Head Road, approximately 250m to the south of the broken Head road and Bangalow Road intersection. south of the Byron Bay High School. It has an area of 10.7ha and includes land in the Zones 1(d), 7(a) and 7(b). The site contains the caravan park development currently known as Beaches of Byron.

 

Zones

The western part of the site is situated in the zone 1(d) and land in this zone extends for approx 240m along the southern boundary. A strip of land in the Zone 7(b), between 10m and 40m wide, abuts the eastern boundary of the Zone 1(d) land. The remaining eastern part of the site is situated in the Zone 7(a) and includes a wide section of Tallows Creek.

 

The existing caravan park is situated within the Zone 1(d) and which part of the site occupies an area of approximately 5.6 ha. 

Development

 

Existing Caravan Park

The existing caravan park comprises the following main elements:

 

  1. Office, shop, administration and manager’s residence adjacent to access point.
  2. A display home is located adjacent to the park entrance.
  3. Open camping in the northern part of the site.
  4. Older holiday/residential structures in the southernmost part of the site,
  5. New residential structures with metal pole columns fixed to concrete foundations in the central and north-eastern parts of the southern section of site with further constructions underway.
  6. Two amenities blocks, covered kitchen/bbq.

 

Topography

The caravan park site is generally level for its majority western part with variations of up to 1.5m. An embankment that runs north –south is situated from between 200m to 230m from the western boundary of the site and 10m to 20m from the from the eastern boundary of the Zone 1(d) land. The bank falls approximately 2.5m – approximately from 5m AHD to 2.5m AHD - to generally level land to the east. A knoll is located adjacent to the top of the embankment and to the southern boundary and which rises to 9.5m AHD. 

 

Vegetation

The majority western part of the site contains remnant and landscape vegetation of various species. The most ecologically valuable area within the Zone 1(d) is located in its eastern part. The site contains Coastal Cypress Pine Forest, which is an Endangered Ecological Community, in its south-eastern corner. Remnant Swamp Sclerophyll Forest, also an Endangered Ecological Community, and wetland habitat is located in the southern part of the lower, level land in the eastern part of the site.

 

A number of significant landscape trees are situated on the site, particularly in the existing camping areas.

 

Flood prone land

The eastern part of the site is flood prone and this includes a small area in the south-eastern part of the site that is located in the Zone 1(d).

 

Bush fire prone land

The site contains bush fire prone land

 

Acid sulfate soils

The site contains acid sulfate soils.

 

1.4       Description of the proposed development

 

The development application form describes the proposed development as Proposed Modifications to Layout and Facilities of an Existing Caravan Park approval to operate a Caravan park and Relocatable Cabin Park.

 

The application incorporates the following elements:

 

Sites

 

78 Long-term sites

75 Short-term sites

60 Camp sites

 

See Site Plan, drawing no. 1 Issue DA4.1, dated 14-11-11 (Annexure 8(a).

 

Refurbished Reception/Amenities/Manager’s Residence

 

Ground level reception, toilets and communal facilities. First storey residence.

 

See submitted drawing no. 8 – Floor Plans, dated 21-7-2011 and submitted drawing no. 9 – Elevations, dated 21-7-2011. 

 

Shop

 

Detached single storey building. See submitted drawing No.7 – Ground Floor & Elevations, dated 21-7-2011.

 

Amenities

 

New amenities building in proposed camping area: see drawing no. 17 Issue DA4.1- Amenities (Floor plan), dated 24-1-11 and drawing no. 18 Issue DA4 – Elevations, dated 21-7-2011

 

Cabins

 

The applicant has advised that all dwelling-sites are to be considered as reserved for self contained movable dwellings. The application incorporates the following cabin designs:

 

Generic cabin designs

 

1-bedroom cabin design: see drawing no. 10 – 1 Bed Cabin Details, dated 21-7-2011.

2-bedroom cabin design: see drawing no. 11 - Floor Plan & Elevations 2 Bed Bondor, dated 21-7-2011.

2 bedroom cabin design: see drawing no. 14 – 2 Bed Type 2, dated 21-7-2011.

2 bedroom cabin design: see drawing no. 15 – Plans & Elevations [Large House], dated 21-7-2011.

 

Particular cabin designs

Designs for cabins on sites LT 6, 12, 34 and 37 & ST 44-49, 51-54 and 56 [Council doc #1168153]

 

Access

 

The existing Broken Head Road access point will be retained with internal road access to all sites. The submitted Site layout depicts a further access adjacent to the northern boundary for provide emergency fire fighting access.

 

Excavation

 

Stormwater management is proposed by way of infiltration detention tanks requiring extensive cuts of a maximum of 2m and bio retention basins.

 

Fences

 

Submitted drawing Figure 6 Landscape Works - Fencing Details, prepared by Butler & Webb, dated 26.07.10 depicts a 1.8m high Aluminium Batten Fence with concrete footings to posts at 2.4m intervals at a 2m setback from the western boundary.

 

This is superseded by Figures 9 & 10, dated 08.09.10, that depict a 1m-1.15m high mounded landscaping buffer on the western boundary of the site and the fence located along the high point of the mound approximately 5m inside the boundary.

 

No final fence details have been received.

 

Landscaping

 

The submitted Site Layout depicts areas available for landscaping. These include a number of small areas within the site and a buffer on the western (road) boundary generally of a width of 10m with a section of a width of 6-7m. Submitted drawings prepared by Butler and Webb depict landscaping proposals. Figures 9 and 10 These vary in terms of what is proposed. However, Figures 9 and 10, submitted following discussions between Council’s consultant planner and Butler & Webb, depict landscaping to a depth of 7m-10m along the western boundary, containing mounding to a height of 1m -1.5m.

 

Staged development

 

Stage 1

The submitted Site Plan (dated 14-11-11) depicts the southern part of the site and the eastern part of the site as “Existing Stage 1.” It does not include the shop or administration building. The area is proposed to contain 41 nominated long-term sites and 37 nominated short-term sites, a total of 78 sites.

 

This part of the site is depicted on the endorsed Site Plan for the current Local Government Act approval as containing 50 long-term sites and 27 short-term sites, a total of 77 sites with an amenities building and adjacent “clothes lines” near the southern boundary.

 

The proposed internal road alignments are generally as per the current approval. .

 

The applicant has indicated their intent to reserve all sites for self contained dwellings.

 

Stage 2

The submitted Site Plan depicts an area as “Stage 2” that extends approximately 65m to the north of stage 1 and includes the entry area, administration building and shop. The existing amenities building in the north-eastern part of this area is deleted. The area is proposed to contain 15 long-term sites and 26 short-term sites, a total of 41 sites.

 

This part of the site is depicted on the endorsed Site Plan for the current Local Government Act approval as containing 44 short-term sites, a total of 44 sites. An amenities building and adjacent “clothes lines” are depicted in the north-eastern part of this area with a playground and grassed area.

 

Stage 3

The submitted Site Plan depicts the north-western part of the site as comprising Stage 3. It includes all camp sites with an amenities building in the centre of the camping area, 22 long-term sites and 12 short-term sites.

 

This part of the site is depicted on the endorsed Site Plan for the current Local Government Act approval as containing 130 camp sites with a bbq area in the central part of the camping area.

 

Submitted drawings

 

Buildings & Layout

Drawing No. 4 Existing Site Plan [This provides replication of Local Government Act approved plan at a useful scale]

Drawing No. 1.Issue DA4.1, Site Plan, dated 14/11/2011 [Council doc #1168101, superseded Council doc #1116816]

Drawing No. 7 Shop Plans dated 21-7-2011

Drawing No. 8 Alterations to Admin Building, dated 21-7-2011 Site Plan, dated 21-7-2011

Drawing No. 9 Administration Building Elevations, dated 21-7-2011

Drawing No. 17 Issue DA4.1 Amenities Plan dated 24/10/2011 [Council doc #1168153]

Drawing No. 18 Amenities Building Elevations & Plan dated 21-7-2011 [Council doc #1116816]

Drawing No. 4 Issue DA4.1, Tree Removal Plan, dated 8-4-2011

 

Fencing

Drawing No. 3 Fence details dated 21-7-2011

Figure 9 Landscape Works – Indicative Buffer Sections Sheet 1 of 2, prepared by Butler and Webb, dated 08/09/10 [new]

Figure 10 Landscape Works - Indicative Buffer Sections Sheet 2 of 2, prepared by Butler and Webb, dated 08/09/10 [new]

Front Fencing and Landscape Details in correspondence of 21/12/2011 [Council doc #1181344]

 

Other

8145    2 Fire Hydrant and Reticulated Water Supply Plan undated [Council doc #1120740]

08145  02/02 Fire Hydrant Coverage plan undated [#1120740]

Drawing No. 5 DA4 Community Amenities Areas dated 21-7-2011

Drawing No. 6 Area Calculation dated 20-7-2011

Drawing No. 2 Fire Buffer Plan dated 21-7-2011

 

Generic Cabin Details

Drawing No. 10 Bed Cabin Details dated 21-7-2011

Drawing No. 11 Floor Plan & Elevations 2 Bed Bondor, dated 21-7-2011

Drawing No. 12 Short Term Cabin Relocation dated 21-7-2011

Drawing No. 13 Panel details dated 21-7-2011

Drawing no. 14 2 Bed Type 2, dated 21-7-2011

Drawing No. 15 – Plans & Elevations [Large House], dated 21-7-2011

Drawing No. 16 Relocation Plan dated 21/7/2011

 

Particular Cabin Details

Designs for cabins LT 6, 12, 34 37 & ST 44-49, 51-54 and 56 have been submitted [Council doc #1168153]

 

Submitted Landscape Plans

The following were submitted at the time of the lodgement of the application prior to changes to the Site layout.

 

Figure 1 Landscape Works Landscape Concept Plan, prepared by Butler & Webb, dated 26.07.10

Figure 2 Landscape Works Open Space Areas, prepared by Butler & Webb, dated 26.07.10

Figure 3 Landscape Works - Reception/Central Facilities Plan, prepared by Butler & Webb, dated 26.07.10

Figure 4 Landscape Works - Shop and Entry Plan, prepared by Butler & Webb, dated 26.07.10

Streetscape Concept Plan, prepared by Butler & Webb, dated 26.07.10

Figure 6 Landscape Works - Fencing Details, prepared by Butler & Webb, dated 26.07.10

Figure 7 Landscape Works - Indicative Buffer Sections, prepared by Butler & Webb, dated 08.09.10

Figure 8 Landscape Works - Indicative Broken Head Road Elevation, prepared by Butler & Webb, dated 08.09.10

Figure 9 Landscape Works – Indicative Buffer Sections Sheet 1 of 2, prepared by Butler and Webb, dated 08/09/10 [new]

Figure 10 Landscape Works - Indicative Buffer Sections Sheet 2 of 2, prepared by Butler and Webb, dated 08/09/10 [new]

 

Drawing No. 5 DA4 Issue 1 Tree Removal Plan dated 8-4-2011

 

Submitted reports/documents/certification

Ecological Assessment by Blackwood Ecological Services dated August 2010

Waste Management Plan dated September 2010

“Conceptual Stormwater Management Plan,” by Cardno, dated 30 July 2010

Concept Stormwater Management report prepared by Greg Alderson dated 10 June 2011

Concept Stormwater Layout Plan, drawing 08145_SW2, prepared by Greg Alderson, undated

Further stormwater management information prepared by Greg Alderson dated 25/10/2011 [Council doc #1168101]

Concept Stormwater Layout Plan, drawing 08145_SW2, prepared by Greg Alderson, dated 1/11/2011

Preliminary Acid Sulfate Soil Assessment prepared by Greg Alderson dated 15 June 2011 [Council doc #1120773] [Amended from prior undated plan], as amended by:

Concept Stormwater Layout submitted 9/12/2011 [Council doc #1176231]

Preliminary Contaminated Land Assessment prepared by Greg Alderson dated 25 June 2011 [Council doc #1120773]

Proposed Sewer layout/Design prepared by Greg Alderson dated 11 July 2011 [Council doc #1120759]

Caravan Park Code and Construction Standard Assessment Stage Two and Three by Mark Norris & Assocs dated 19 July 2011 [Council doc #1116820]

Traffic Impact Assessment prepared by Greg Alderson dated July 2011 [Council doc #1141788]

Bushfire Threat Assessment Report by BCA Check dated July 2008 as amended November 2010, August 2011 [Council doc #1133130,

 

Trade waste report by G Alderson dated 3 August 2011 [Council doc #1121875]


 

1.5       Owner’s consent 

 

Part 1(i) of Schedule 1 of the EPA regulations which specifies the information to be included in a development application states: if the applicant is not the owner of the land, a statement signed by the owner of the land to the effect that the owner consents to the making of the application,…

The applicant is Thinktank Architects, acting for the lessee of the site.

Step 12 of the development application form lodged with Council has been completed to state Zandata P/L –See attached correspondence with Ray Darney [Council’s Director of Planning] and is also signed by Michael Jullyan for the applicant.

The landowner is Zandata P/L. Correspondence of 23 November 2010 to Council from a solicitor acting for Zandata Pty Ltd states: Byron Bay Retirement Villages currently has a development application lodged pertaining to this block of land [i.e. the site]. We advise that Zandata Pty Ltd does not consent to the development application before Council.

It is noted that the matter of owner’s consent arose in regard to DA 10.2009.77.1 for a like development on the site. A report to Council was completed which recommended refusal. The application was withdrawn prior to its consideration by Council.

At that time the landowner’s then agent was advised that, pursuant to paragraphs 9 and 10 of Becton Corporation Pty Limited v Minister for Infrastructure, Planning and Natural Resources & Anor [2005] NSWLEC 197 (26 April 2005), it was open to Council to assess the application without the owner’s consent.

The applicant advised in correspondence to Council of 12 November 2009 that under the terms of the lease the lessee has “…the landlords automatic consent to any application that is capable of being approved by BSC. This lease condition was confirmed recently by the Supreme Court of NSW, contrary to the owners current and unlawful objection. Please contact us if you require a copy of the courts determination in this matter. We would however rely on the fact that in due process Council should determine this application, with a condition that owners consent is naturally required, this approval will then be confirmed by both parties solicitors, under the terms of our lease.”.

The private arrangements between the lessor and lessee are not considered in this report. The relevant fact is that the landowner has not consented to the application. This circumstance has the consequence that a refusal to the application is recommended. 

2.         SUMMARY OF GOVERNMENT/EXTERNAL REFERRALS

 

Rural Fire Service

 

The proposed development comprises a caravan park and as such requires a bush fire safety authority issued under Section 100B of the Rural Fires Act.

 

The Rural Fire Service has issued a S100B authority conditioned as follows:

 

Asset Protection Zones

The intent of measures is to provide sufficient space and maintain reduced fuel loads so as to ensure radiant heat levels of buildings are below critical limits and to prevent direct flame contact with a building. To achieve this, the following conditions shall apply:

1.            A minimum 15 metre APZ shall be provided to the north of proposed lots LT67 to LT72.

A minimum 16 metre APZ shall be provided to the north of proposed lots LT42 to LT55.

The APZs shall be managed as an inner protection area (IPA) as outlined within Appendices 2 & 5 of ‘Planning for Bush Fire Protection 2006’ and the NSW Rural Fire Service’s document ‘Standards for asset protection zones’.

2.            A minimum 20 metre APZ shall be provided to the east of proposed lots LT57 to LT66.

A minimum 21 metre APZ shall be provided to the east of proposed lots LT67.

The APZs shall be managed as an inner protection area (IPA) as outlined within Appendices 2 & 5 of ‘Planning for Bush Fire Protection 2006’ and the NSW Rural Fire Service’s document ‘Standards for asset protection zones’.

Water and Utilities

The intent of measures is to provide adequate services of water for the protection of buildings during and after the passage of a bush fire, and to locate gas and electricity so as not to contribute to the risk of fire to a building. To achieve this, the following conditions shall apply:

3.            Water, electricity and gas are to comply with sections 4.1 .3 and 4.2.7 of
‘Planning for Bush Fire Protection 2006’.

Access

The intent of measures for fire trails is to provide suitable access for fire management purposes and maintenance of APZs. To achieve this, the following conditions shall apply:

4.            The proposed fire trail shall have:

i.         a minimum carriageway width of 6.5 metres with an additional 1 metre wide strip on each side of the trail clear of bushes and long grass;

ii.       an all weather surface;

iii.      a minimum vertical clearance of 6 metres to any overhanging obstructions, including tree branches;

iv.     where gates for the fire trail are provided and locked, the key/lock system shall be authorised by the local RFS.

The intent of measures for internal roads is to provide safe operational access for emergency services personnel in suppressing a bush fire, while residents are accessing or egressing an area. To achieve this, the following conditions shall apply:

5.            Internal roads shall comply with section 4.2.7 of ’Planning for Bush Fire
Protection 2006’.

Evacuation and Emergency Management

The intent of measures is to provide suitable emergency and evacuation (and relocation) arrangements for occupants of special fire protection purpose developments. To achieve this, the following conditions shall apply:

6.            Arrangements for emergency and evacuation are to comply with section 4.2.7 of ‘Planning for Bush Fire Protection 2006’.

Design and Construction

The intent of measures is that buildings are designed and constructed to withstand the potential impacts of bush fire attack. To achieve this, the following conditions shall apply:

7.            Construction on lots LT54 to LT56 & LT68 to LT72 shall comply with section 7 (BAL 29) Australian Standard A53959-2009 ‘Construction of buildings in bush fire-prone areas’.

The southern elevation maybe reduced and comply with section 6 (BAL 19) and section A3.7 Addendum Appendix 3 of ‘Planning for Bush Fire Protection’.

8.            Construction on lots LT57 to LT67 shall comply with section 8 (BAL 40) Australian Standard AS3959-2009 ‘Construction of buildings in bush fire-prone areas’.

The western elevation maybe reduced and comply with section 7 (BAL 29).

9.            Construction on lots LT42 to LT53 shall comply with section 8 (BAL 40) Australian Standard A53959-2009 ‘Construction of buildings in bush fire-prone areas’.

The southern elevation maybe reduced and comply with section 7 (BAL 29).

10.        Construction on lots 5T50 to 5T63 shall comply with section 6 (BAL 19) Australian Standard A53959-2009 ‘Construction of buildings in bush fire-prone areas’ and section A3.7 Addendum Appendix 3 of ‘Planning for Bush Fire Protection’.

The southern elevation maybe reduced and comply with section 5 (BAL 12.5) and section A3.7 Addendum Appendix 3 of ‘Planning for Bush Fire Protection’.

11.        Construction on lots 5T38 to 5T49, 5T69 to 5T75 & LT73 to LT76, LT78 shall comply with section 5 (BAL 12.5) Australian Standard A53959-2009

Construction of buildings in bush fire-prone areas ’and section A3.7 Addendum Appendix 3 of ‘Planning for Bush Fire Protection’.

12.        Construction on lots 5T64 to 5T68 & LT77 shall comply with section 6 (BAL 19) Australian Standard A53959-2009 ‘Construction of buildings in bush fire-prone areas ’and section A3.7 Addendum Appendix 3 of ‘Planning for Bush Fire Protection’.

Landscaping

13.        Landscaping to the site is to comply with the principles of Appendix 5 of ‘Planning for Bush Fire Protection 2006’.

 

3.         SECTION 79C – MATTERS FOR CONSIDERATION – DISCUSSION OF ISSUES

 

Having regard for the matters for consideration detailed in Section 79C(1) of the Environmental Planning & Assessment Act 1979, the following is a summary of the evaluation of the issues.

 

3.1.      STATE/REGIONAL PLANNING POLICIES AND INSTRUMENTS

 

Requirement

Requirement

Proposed

Complies

State Environmental Planning Policy No 55—Remediation of Land

 

Council must:

(a)     consider whether the land is contaminated, and

(b)     if the land is contaminated, if the land is suitable in its contaminated state or after remediation, and

(c)     be satisfied the land will be remediated before the land is used.

 

‘Preliminary Contaminated Land Assessment for Lot 9 DP 708338. 5-37 Broken Head Road, Byron Bay. Greg Alderson and Associates Pty Ltd. Report No. 08145_SEPP55_2. 15 June 2011’ submitted.

 

This report states 12 soil samples were collected, composited and analysed for a range of heavy metals and pesticides. All results were below the NSW DEC Health Based Investigation Levels (Residential) or below the limit of reporting. The site is not considered to be contaminated and is suitable for its intended use.

 

No further information is required.

 

Yes

State Environmental Planning Policy No 21—Caravan Parks

8   Development consent required for caravan parks

(2) Before granting development consent…a Council must determine

the number of sites (if any) within that land that the Council considers are suitable for long-term residence…and that are not suitable for long-term residence, but are suitable for short-term residence… and must impose a condition specifying the maximum number of sites (if any) within that land that may be used for long-term residence.

 

10 Matters to be considered by Councils

 

a) (a) whether, because of its location or character, the land concerned is particularly suitable for use as a caravan park for tourists or for long-term residence,

(b (b) whether there is adequate provision for tourist accommodation in the locality of that land, and whether existing or potential tourist accommodation will be displaced by the use of sites for long-term residence,

(c(c) whether there is adequate low-cost housing, or land available for low-cost housing, in that locality,

 

The number of proposed long-term sites is specified in the application and which number is the result of negotiations between applicant and Council and which number, in the context of the number of proposed short-term sites and camping sites, is supported

 

 

 

 

 

 

 

 

 

 

 

 

 

Site has long-standing use as a caravan park and is the subject of a current Local Government Act caravan park approval

 

 

The proposed mix of sites suitably reflects the need for both tourist use of the site and long term residence in the locality

 

 

 

 

 

Existing low cost housing in the locality is provided by the subject caravan park. It is proposed to increase the number of long term sites from the 50 approved in the current Local Government Act approval to the proposed 79. The development will benefit the provision of affordable, or at least more affordable, housing in the locality. 

 

Yes

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Yes* (see comment below)

 

 

 

 

Yes* (see comment below)

 

 

 

 

 

 

 

Yes

Local Government (Manufactured Home Estates, Caravan Parks, Camping Grounds and Moveable Dwellings) Regulation 2005

 

Caravan Park:

Compliance with provisions of Part 3

 

Relevant provisions of the Regulations are cited below and the compliance, or otherwise, of the proposed development discussed in relation to these.

Yes (development is capable of compliance with relevant Regulations

North Coast Regional Environmental Plan

43   Development control—residential development

The council shall not grant consent to development for residential purposes unless:

©I (c) it is satisfied that, where development involves the long term residential use of caravan parks, the normal criteria for the location of dwellings such as access to services and physical suitability of land have been met,

 

 

 

 

 

 

The site is suitable for limited urban residential development  

 

 

 

 

 

Yes

NSW Coastal Policy 1997

Protection of coastal environment, access and amenity

Proposed development will not materially impact on existing coastal environment, access or amenity

Yes

 

 

State/Regional Planning Policies and instruments

 

State Environmental Planning Policy No 21—Caravan Parks

 

10 Matters to be considered by Councils

 

(a)  whether, because of its location or character, the land concerned is particularly suitable for use as a caravan park for tourists or for long-term residence,

 

The subject site has had long usage as a caravan park containing long term sites, short tern sites and camping sites with the predominant use being that of tourist use.  The applicant was advised in the context of a prior application, that an appropriate mix of sites would comprise a minimum 65 camp sites and no more than one half of the other sites as long-term sites. The current proposal generally complies with this advice and is considered to be suitable for the site.

 

The incidence of long term sites in the proposal should not however be at the expense of suitable tourist amenities. Such amenities reasonably require the provision of communal cooking/eating/washing up facilities as is currently provided. This matter is discussed in section 3.4 of this report in comments in relation to social and economic impacts in the locality

 

(b)  whether there is adequate provision for tourist accommodation in the locality of that land, and whether existing or potential tourist accommodation will be displaced by the use of sites for long-term residence,

 

There is limited tourist accommodation in the southern part of Byron Bay and the Suffolk Park settlement between which the subject site is located. Caravan park style accommodation is available at the Suffolk Park Caravan Park of approximately 55 sites located 2 km to the south and a primitive camping ground of 7 sites is located at the Red Devils sports ground 1km to the north.

 

The existing camping area and the northern short-term sites area (which do not have structures in place) are commonly under-utilised. It can be accepted that the mix of sites can be varied as proposed without unacceptably harming the adequacy of the availability of this kind of tourism in the locality. However, this adequacy requires that camping provision of an amenity substantially commensurate with that currently available on the site be provided. While such amenity will be tend to be diminished by the increase in the number of self contained dwellings, such amenity can be more substantively maintained by the inclusion of communal cooking facilities in the development. The applicant has indicated agreement to the incorporation of a communal facility.      

 

Local Government (Manufactured Home Estates, Caravan Parks, Camping Grounds and Moveable Dwellings) Regulation 2005

 

Caravan parks require both development consent under the EPA Act and approval under Section 68 of the Local Government Act. The latter approval requires compliance with Local Government (Caravan Parks, Camping Grounds and Moveable Dwellings) Regulation 1995. There would be no utility in issuing a consent without confidence that the requisite Local Government Act approval can be obtained and therefore the application has been assessed against these Regulations. 

 

The application incorporates a “Caravan park Code” assessment for Stages 2 and 3. This concludes that the “…proposed design of stages 2 and 3 would comply with the relevant regulatory requirements of the Local Government…Regulation.”

 

It is however noted that compliance with these Regulations does not, of itself, demonstrate compliance with s79C(1) of the EP & A Act and it is open to Council, if the merits so warrant, to impose additional controls to those provided in the Regulations.

 

Where appropriate the provisions of the Local Government Act Regulations have been considered below. 

72 Matters to be specified in approval

(1)   In addition to any other matters it must contain, an approval to operate a caravan park or camping ground must specify the following:

 

(b) (i)   the number, size and location of long-term sites allowed by the approval, and

(ii)   the number, size and location of short-term sites allowed by the approval, and

(iii)   the number, size and location of dwelling sites (whether long-term or short-term) to be reserved for self-contained moveable dwellings, and

 

A development consent for the proposal would specify site numbers and types. The applicant has advised that all long-term and short-term sites be reserved for self-contained moveable dwellings and any ramifications of this, e.g. timing of water and sewer provision, other usage of site if no dwelling in place, can be conditioned in a development consent.

 

74   Conditional exemptions

(1)  The prior approval of the council is not required for the installation of a relocatable home or associated structure on a dwelling site within a caravan park, so long as it is designed, constructed and installed in accordance with the relevant requirements of Division 4.

 

It is however noted that pursuant to clause 160 of the Regulations, Council is required to be advised of the installation of a relocatable home within 7 days of its installation and informed as to its compliance with specified clauses.

76   Installation of relocatable home, rigid annexe or associated structure of more than one storey

The submitted Site Plan is annotated to state: All buildings except main facilities building must be a maximum of 1 storey.”

 

There exist 2 dwellings on the site greater than one storey. A consent can be conditioned to specify sites on which existing two storey buildings are located and require that if these are to be replaced, then only one storey buildings are permitted.

 

84   Community amenities

 

(1)     Of the total land area of a caravan park or camping ground:

(a)   at least 10 per cent, or

(b)   such lesser proportion (but not less than 6 per cent) as the approval for the caravan park or camping ground may allow, must be reserved for recreation or other communal activities.

(2)     In deciding whether to allow a lesser proportion, the council must have regard to the type and range of amenities to be provided and to such other matters as it considers relevant.

 

Clause C 10.2 of DCP 2002 also contains provisions that relate to “Recreation Areas”. These require that 10% of the caravan park area be reserved for recreational and community activities, that 10% of this reserved area may be occupied by appropriate building and that the reserved area must not include any site, camp-site, roadway or other area designated for any other purpose

 

Site has an area of 10.7 ha. Approximately 5.6 ha is located in the Zone 1(d), the remainder in the Zones 7(a) and 7(b). For the purpose of the application of this clause, the “site” is deemed to comprise that land in the Zone 1(d). Caravan parks are prohibited in the Zones 7(a) and 7(b) and there is no suggestion from the applicant that any existing use right extends onto the Zone 7(a) and/or 7(b) lands.  

 

The SEE states in regard to clause 84 of the Regulations and clause C 10.2 of DCP 2002 that over 3 ha of the site is available for recreation area, including open space and pool area, free of roads, sites and amenities. [SEE p.17, p.20]

 

10% of the site area comprises an area of 5,500 m2.

 

The site includes an area of approximately 5,500 m2 between the eastern edge of the sites and the eastern edge of the Zone 1(d) land. It has been agreed with the applicant that approximately the southern 2,400 m2 of this land have restricted usage and be dedicated to ecological restoration and management with the remainder available for community use. The amended layout as displayed in the Site Plan dated 21-7-2011depicts an area of approximately 500 m2 for the pool and grassy surrounds, a grassed area of approximately 650 m2 opposite the pool and a grassed area of 400 m2 to replace the southern amenities building. Also, the development includes a 10m to15m setback on the northern boundaries which will contain a 7m wide fire access road. It is noted that use of this road will be restricted to emergency vehicles and the setback will therefore contribute to the provision of open space. The development also incorporates communal areas associated with the administration building and shop.

 

In the context of the above, the proposed development is satisfactory in regard to the provision of open space.

 

85   Size of dwelling sites and camp sites

(1)  A long-term site must have an area of at least 80 square metres.

(2)  A short-term site must have an area of at least 65 square metres.

(3)  A camp site must have an area of at least:

(a)   40 square metres, in the case of a camp site for which a separate parking space is provided within 30 metres of the camp site, or

(b)   50 square metres, in any other case.

 

All sites have compliant areas. Long-term site areas range widely from 89 m2 to 419 m2. Short-term site areas range from 66 m2 to 209 m2. Camp sites range from 49 m2 to 109 m2.

 

91   Separation distances

(1)  A moveable dwelling must not be installed closer to any other moveable dwelling than:

(a)   3 metres, if it is situated on a long-term site, or

(b)   2.5 metres, if it is situated on a short-term site or camp site

 

The proposed sites are capable of containing dwellings that comply with clause 91.

 

92 – 100 Roads

 

Sections 92 -100 prescribe standards for access, internal roads and parking. These matters are discussed below in comments in relation to Part G of Chapter 1 Byron DCP 2010 in which it is assessed that the proposed internal road system is satisfactory.

 

102 Sewerage

 

It is proposed that all dwelling sites be connected to sewer mains

 

103 Drainage

 

See comments re Part N of Chapter 1 of DCP 2010

 

107/108 Showers and toilets

 

The Regulations provide a table that specifies minimum shower/toilet numbers, including for disabled provision. It is noted that s71 of the Regulations requires that council specify the number of dwelling sites (long or short term) to be reserved for self contained moveable dwellings. Unless a site is so specified, it would need to be counted in the table.

 

A 3 stage development is proposed. An existing amenities building is located in that part of the site designated as Stage 1 and a second existing amenities building is located in that part of the site located in Stage 2. The submitted Site Plan deletes the existing building in the Stage 2 part of the site and depicts a new amenities building in the camping area for Stage 3. The applicant has stated that all long and term sites are to be reserved for self-contained dwellings.

 

Any development consent to the application should include suitable conditions in regard to the staging of the development to ensure that adequate facilities are available at any time.

Within each stage it may take a considerable time before all dwelling sites contain a self-contained dwelling if in fact that outcome eventuates. In the interim, if there is public demand for the use of unoccupied sites for campervan /caravan/camping use it would be prudent to anticipate that such a use would be undertaken.  Also, the existing 154 camp sites will remain until Stage 3.

 

It is recommended that the existing amenities within Stages 1 and 2 be maintained in operation until all sites within Stages 1 and 2 contain-self contained dwellings and provided that Council has received a notice of the installation of each self-contained dwelling as per clause 160 of these Regulations.

 

Also that the existing amenities within Stage 2 remain in operation until all dwelling sites within Stages 2 and 3 contain self contained dwellings and provided that Council has received a notice of the installation of each self-contained dwelling as per clause 160 of these Regulations and until the proposed new amenities in Stage 3 are operating.     

 

The proposed amenities block will contain adequate facilities for the proposed camp sites usage.

 

113-116 Laundry facilities

 

A self contained dwelling with laundry facilities does not generate a requirement for a communal laundry facility. The 60 camp sites generate a demand for 2 washing machines and 120m of clothes line. The proposed amenities block which will replace the existing amenities blocks will provide 3 washing machines and some 60m of clothes line. Further clothes line provision is required

 

139   Site coverage

 

(1)     A relocatable home and any associated structure must not be installed on a single dwelling site if the floor plan area of the relocatable home (together with any associated structure or other building or structure on the site) is more than two-thirds of the area of the site.

(2)     For the purposes of this clause:

(a)  the floor plan area of a relocatable home is the area of the dwelling site occupied by the home, excluding the area of any associated structure forming part of the home that is not roofed, and

(b)  the floor plan area of any associated structure not forming part of the relocatable home is the area of the dwelling site occupied by the structure, excluding any area that is not roofed, and

(c)  if there is no carport or garage on the dwelling site, an area of 18 square metres must be added to the floor plan area of the relocatable home to account for the car parking space that is required by subclause (3) to be provided on the site.

(3)     If there is no carport or garage on the dwelling site, an area with minimum dimensions of 6 metres by 3 metres, accessible from an access road and useable for car parking, must be provided on the site.

(4)     Subclause (3) does not apply if the resident’s parking space for that dwelling site is separate from the site.

 

Submitted drawings no.10, 11, 14, 15 depict various self-contained dwelling designs. These contain floor areas of 53 m2 (drawing no.10), 60 m2 (drawing no.11), 90 m2 (drawing no.14) and 115 m2 (drawing no.15). These designs would require minimum site areas of 80 m2, 90 m2, 120 m2 and 172 m2 respectively. No dwelling site is less than 80 m2 and many long-term sites are greater than 172 m2

 

160   Notice of installation of relocatable home or associated structure

 

Section 160 provides as follows:

(1)     The holder of an approval to operate a caravan park or camping ground must give the council written notice of the installation of a relocatable home or associated structure within 7 days after the completion of the installation.

(2)     The notice:

(a)  must indicate the site identifier of the dwelling site on which the relocatable home or associated structure has been installed, and

(b)  must include the particulars contained on each compliance plate relating to the relocatable home or associated structure.

(3)     The notice must also be accompanied by:

(a)  a copy of the engineer’s certificate for the relocatable home or associated structure, and

(b)  a fully dimensioned diagram of the dwelling site on which the relocatable home or associated structure is installed, sufficient to indicate whether or not the setback, density, open space and site delineation requirements of this Part have been complied with.

 

The site contains a number of older dwellings and a number of very new dwellings with installation of new dwellings continuing. Council has not been advised, pursuant to clause 160, of the installation of all of these new dwellings or of the relevant details.

 

It cannot be assumed that these new dwellings are compliant with the Regulations in the context of the proposed site layout. It also not known whether new reticulated water and/or sewer services have been installed (as distinct to connections from existing reticulated services to individual dwellings) and if so, whether approval under Section 68 of the Local Government Act has been obtained for these installations.

 

This assessment concludes that the proposed site layout complies with relevant Local Government Act provisions. It would be appropriate for Council to require, prior to the issue of a Local Government Act approval for the development, an audit of existing dwellings on the site. 

 

3.2.      BYRON LOCAL ENVIRONMENTAL PLAN 1988

 

Zone: Zone No. 1(d) - Investigation Zone / PART 7(a) - Wetlands Zone / PART 7(b) - Coastal Habitat Zone [Development is restricted to Zone 1(d) land only]

Definition: Caravan Park

LEP Requirement

Summary of Requirement

Proposed

Complies

Meets zone 1(d)objectives

(b) to ensure that development within the zone is compatible with the anticipated future development of the land;

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

(f) to identify land requiring protection of significant vegetation and wildlife habitats, and to ensure that development does not adversely affect the integrity of the environment.

The Local Environmental Study prepared as the basis for the preparation of a new Local Environmental Plan, commissioned by Council resolution 04-1067 and confirmed by Council resolution 06-416, states:

This lot is part of investigation site 3 of the Byron Bay and Suffolk Park Settlement Strategy and is not recommended for significant urban development.

The area used for a caravan park should be zoned SP3 to reflect Council’s desire to maintain this sort of tourism accommodation in Byron Bay (p464)

 

Anticipated future use is for predominant tourism use which will be maintained by the proposed mix of sites

 

The high conservation value  parts of the site will not be developed and will be protected

Yes

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Yes

 

Permissible/Prohibited use

Caravan Park prohibited in Zone 1(d)

The application states that: the proposed alterations are permissible under the provisions of Sec 106 of the EPA Act

 

* See comments re existing use below

2A Implementation of aim, objectives and guiding principles

 

Council shall have regard to the information, guidelines and recommendations of…the Byron Biodiversity Conservation Strategy

The development will enable the use of the south-eastern part of the caravan park site, which contains HCV vegetation and abuts land in the Zone 7(b), to be restricted and the area dedicated to ecological enhancement. This part of the site is designated as “Outdoor Recreation Area’ on the current S68 Caravan park approval.

Yes

24 Development of flood liable land

 

Council must be satisfied that:

-        flow characteristics of flood waters are not restricted;

the level of flooding is not increased;

Condition required re floor levels of specified sites

Yes* (see comment below)

36 Development adjoining wetland

 

A person shall not clear, drain, excavate or fill land without the consent of council.

Development on or adjoining or contiguous to land within Zone No. 7(a) consideration must be given to effect on flora and fauna found in the wetlands and the water table

The site incorporates land and a water course in the 7(a) Zone. The part of the site that contains existing development and the proposed development is located in the Zone 7(d). No works are proposed that will adversely impact on the flora and fauna found in the wetlands and the water table. 

 

Yes

37 Development within Zone No. 1(d)(Investigation Zone)

 

Consideration must be given to the following as they relate to likely future uses of the land to be investigated:

-        the strategic implication of the development of the land

-        environmental management of the land

-        the need to protect significant vegetation and wildlife habitats, and

-        affect on significant vegetation and wildlife on that land or adjacent land

 

See comments above re Zone 1(d) objectives

Yes

45 Provision of Services

The Council shall not consent to the carrying out of development on any land to which this plan applies unless it is satisfied that prior adequate arrangements have been made for the provision of sewerage, drainage and water services to the land

Council sewer and water services are available to the site. Details of current and proposed loads are specified in comments in section 4.1 of this report

Yes

52 Tree

 

Preservation

 

A person must not ringbark, cut down, top, lop, remove, injure or wilfully destroy any tree or other vegetation covered by the tree preservation order without the consent of Council.

 

The development will require the removal of tress across the bulk of the site proposed for self contained dwelling sites. This is supported given that ecological enhancement is proposed for the south eastern part of the site and substantive front setback landscaping is proposed.

Yes

63 Acid sulphate soils

Western portion Class 3 soils.

Eastern portion Class 2 soils

Excavation up to 2m proposed in eastern part for stormwater management and excavation will be required for water/sewer services.

 

Yes*(see comment below)

* Non-complying issues discussed below


 

Byron Local Environmental Plan 1988- Issues

 

Permissible use

 

The application claims an existing use right under section 106 of the EPA Act and proposes changes to that existing use right under section 41(1) of the EPA Act Regulations.

 

Building application 6.1972.34.1 for caravan park and motel and residence was approved by Council on 31 May 1972 and BA 6.1981.514.1 for New amenities block for caravan park was approved by Council on 9 September 1981. 

 

Under the Byron Interim Development Order No.1 the site was zoned non-urban and a caravan park/camping ground was a permissible use

 

Consequent to the gazettal of the Byron LEP, the site was zoned part Zone 1(d), part Zone 7(a) and part Zone 7(b). The proposed development is restricted to that part of the site located within the Zone 1(d). A caravan park is not specified as a use that is permissible without or with development consent and is therefore prohibited in the Zone 1(d).

 

Local Government Act approvals for a caravan park on the site date from July 1987 for 39 long term sites, 61 short term sites and 154 camp sites. There is a wide disparity between the scope of the development as approved under the prior building applications and that approved under s68 of the Local Government Act and the application does not provide evidence that the caravan park use was commenced in accordance with the prior BA approvals.

 

If it is accepted that the caravan park use has an existing use right, then it is accepted that the proposed alterations/additions are permissible. 

 

Lawful determination of whether an existing use right exists and if so, the scope of that right, is a matter for the Land and Environment Court. Only in the event that Council challenges the claimed existing use right is there a reason for such determination. In the context that Council has supported the caravan park use under the Local Government Act, this report does not further investigate this matter.

 

24 Development of flood liable land

 

1% AEP Flood Level                                          =       4 m AHD

Minimum Floor Level                                         =       4.5m AHD

1% AEP Flood Velocity                                     =       n/a

Level of Land                                                     =       all sites >4m AHD 

Lowest Habitable Floor Level                            =       suitable condition to be imposed

Flood Hazard                                                     =       n/a

Impact of Flood Levels/ Flood Plain                  =       nil

 

Condition required to require LT35 & LT36 to have min floor level of 4.5m AHD

 

63 Acid sulphate soils

 

Council’s GIS shows the whole property is classified as containing ASS: the western portion is classed as ASS Class 3 and the eastern portion is ASS Class 2. Clause 63 of the LEP specifies requirements for works below the natural ground surface or works by which the water table is likely to be lowered for Class 2; and works beyond 1m of the natural ground surface or works by which the water table is likely to be lowered beyond 1 m below the natural ground surface for Class 3 soils.

 

The Statement of Environmental Effects con tins an annexure consisting of a letter by Greg Alderson and Associates dated 31 August 2010 which states ‘In April 2008 a Preliminary Acid Sulfate Soil Assessment for the site, see report dated 15 April 2008, was undertaken. It concluded that the site would not disturb acid sulphate soils to the investigation depth of 3m however, the environmental zone to the east of the site contained actual acid sulphate soils. It is recommended that if the future development does propose deeper construction then 3m on the site that further investigation would be required. The current proposal appears to be adequately addressed by our initial report’.

 

Additional information was received in the form of an email dated 29 July 2011 and attachments. One attachment comprises a ‘Preliminary Acid Sulfate Soil Assessment for Proposed Redevelopment at Lot 9 DP 708338. 5-37 Broken Head Road, Byron Bay. Greg Alderson and Associates Pty Ltd. Report No. 08145_ASS2 2011. 15 June 2011’.

 

This ASS report states that four boreholes were drilled, three in the area of the proposed development and one in the ‘low lying area in the east of the site’. Sample location and depths were determined to take into account proposed pump wells (two) and swimming pool. Watertable was encountered at 2.1m at borehole 1 only. The report also discusses results of ASS testing undertaken in October 2008. Field and laboratory testing concluded there are no ASS (actual or potential) in the vicinity of the two proposed pump wells; no ASS in the proposed development area; and actual ASS were identified in the low lying ‘Environmental Zone’ to the east of the development site but there is no development proposed in that area.

 

The submitted Concept Stormwater Management by Greg Alderson & Associates, dated 10/06/2011 plan proposes the use of infiltration detention tanks and a number of vegetated bio retention basins. 

A detention tank of a depth of 1.3 m x width 0.685m x length 135m at a minimum depth of 0.5m is to located under the emergency vehicle access road/buffer area along the eastern boundary of the northern part of the site. The bottom of the tank is specified to be located at 3.6m AHD. The site contours in this part of the site mean that excavation generally of a depth of around 2m will be required with a maximum cut of 2.6m. It is noted that borehole 1 identified above is located in this area.

A detention tank is also proposed for a length of approximately 150m beneath the roadway adjacent to the easternmost sites. This will require excavation of up to a maximum of 2.0m.

 

This matter has been assessed by Council’s Environmental Officer who supports the application with conditions.  

 

3.3       DEVELOPMENT CONTROL PLANS

 

Development Control Plan 2002

 

Requirement

Requirement

Proposed

Complies

C 2.2 Extent of Earthworks

Max cut/fill 1m

Maximum 2m cut for stormwater plus excavation for sewer and water services. The excavation is for underground services provision and will not be evident when completed. The proposed excavation does not offend the Element Objectives

Yes

C 3.6 Fences

Front fences greater than 1.2 metres and less than 1.8 metres are permitted for properties:

-       near commercial premises; and

-       where car headlights can be demonstrated to be a potential problem

 

Any solid front fence higher than 1.2 metres must not be continuous but must have recessed sections of a minimum 0.5 x 0.5 metres at a maximum interval of 6 metres to allow planting of vegetation to reduce the impact of the fence

Submitted fencing details depict a 1.8m fence within extensive front setback landscaping

Yes (see comments below)

C 10 CARAVAN PARKS

 

 

 

C10 Objective (a)

(a) to ensure that the quality of design and amenity available to long-and short-term occupants is consistent with that available to residents and tourists within the Shire generally;

 

In order to achieve this objective, communal cooking/eating area needs to be provided for camp site occupants. The applicant has agreed to incorporate such a facility.

Yes

C 10.2 Recreation Areas

(a)10% of the total area of a caravan park(D) or camping ground (not being an existing park) must be reserved for recreation and communal activities; and

(b) the reserved area must not include any site, camp-site, roadway or other area designated for any other purpose, but may be improved by trees or other plants or used, to an approved extent, as the site of a building devoted to recreation or communal activities.

 

Council may approve a building devoted to recreation or communal activities where:

 

(a) the building occupies no more than 10% of the total recreation area;

(b)  it is demonstrated that the proposed activities for which the building is designed are appropriate to the proposed mix of long-term and short-term occupants;

(c)  the building is integrated with the overall landscaping plan for the recreation area.

See comments re clause 84 of Local Government (Manufactured Home Estates, Caravan Parks, Camping Grounds and Moveable Dwellings) Regulation 2005

Yes

C 10.3 Landscaping

Performance Criteria

The area reserved for recreation and communal activities (clause C10.2) must be common landscaped area(D).  Council requires particular attention to be given to landscaping of street frontages and site boundaries, screening of amenities buildings and parking areas, and landscaping to increase the privacy and amenity of occupants. A landscape plan must be prepared for the whole of the proposed site,

 

The proposal has been amended to comply with this clause. 

 

Yes

C 10.4 Siting

Performance Criteria

Existing vegetation must be protected

 

 

 

 

 

 

 

 

 

 

Site layout and landscaping must break up or conceal the repetitive image of caravans and movable dwellings;

 

Trees will be removed to enable more self contained dwellings

However, high conservation vegetation in the eastern part of the site will be protected and enhanced some landscaping around cabins will be undertaken and a wide front setback will enable substantial landscaping.

 

Proposed layout generally comprises straight lines of self contained dwellings. However, this is the case for the current Local Government Approval and the capacity for front setback landscaping will substantially screen the development from the adjacent public road.

Yes

 

 

 

 

 

 

 

 

 

 

 

 

Yes

C 10.5 Equity of access and mobility

Access must be in accordance with AS1428.2 (including access to any laundry, kitchen, sanitary and common facilities, office and public telephone). One (1) on-site caravan (or the like) must be fully accessible per 10 on-site caravans, with a minimum of 1 fully accessible on-site caravans for each development.

 

One accessible space must be provided for each accessible on-site caravans in accordance with AS2890 Part 1.

The development has the capacity to satisfy this provision and a condition can be imposed to ensure compliance

 

 

 

 

 

 

 

 

 

The development has the capacity to satisfy this provision and a condition can be imposed to ensure compliance

Yes

 

 

 

 

 

 

 

 

 

 

 

 

 

Yes

Part G Parking and Vehicle Circulation

1 space per site,

1 visitor space per 10 sites,

1 space for manager

Adequate provision proposed

Yes*(see comments below)

Part N Stormwater Management

Satisfactory stormwater management

A revised Concept Stormwater Management report has been submitted by Greg Alderson & Associates.

The plan proposes the use of approximately 3,200 m3 infiltration detention tanks and a number of vegetated bio retention basins. The stormwater from the cabins is to be directly connected to the detention tanks.

Suitable conditions should be imposed to provide detailed design and calculations for the stormwater management facilities recommended in the conceptual stormwater management plan prior to issue of the construction certificate.

 

Yes* (see comment below)

 

Development Control Plan 2002 - Issues

 

C 3.6 Fences

 

An existing timber fence of a height of approximately 1.8m is situated on the front boundary. The fence has recessed sections containing vegetation. Council files do not contain any documentation of the fence having obtained the required planning approval. 

Submitted drawings Figures 9 & 10, titled Landscape Works – Indicative Buffer Sections Sheets 1 & 2 of 2, prepared by Butler and Webb, dated 08/09/10 depict a 7m to 9m wide landscaping buffer containing a 1m to 1.5m high mound and a fence of approximate height of 1.8m located on the mound at a front setback of 5m or 6.5m.

 

These drawings do not depict a fence design and do not clearly depict the length and alignment of the front fence.

 

However, the wide front landscaping buffer comprises a substantive merit in favour of the development and a fence within that landscaping would not reduce that merit.

 

The following points are relevant to the consideration of front fencing in the context of the site and proposed development:

 

·           The site has a road frontage of 320m and any front fence has the potential to impact significantly on the streetscape and fail to satisfy the Element Objective of clause C 3.6    - To ensure that fences do not become a dominant built element in the streetscape.

·           Broken Head Road in the subject locality is characterised by extensive vegetation. The site to the north comprises national park and the Byron Bay Golf Course is opposite. Houses on land in the Zone 2(a) to the south of the site are generally well setback with substantive front setback vegetation.

·           The existing fence does not have the required approval, is generally unrelieved by landscaping and significantly detracts from the existing streetscape

·           The existing streetscape will be enhanced by the removal of the existing fence and its replacement by a fence substantially or wholly screened by vegetation.

·           The submitted Site Plan depicts a front setback that is available for landscaping of a width that is predominantly close to 10m and with a 60m long section where the setback reduces between 4m and 7m.

·           A front fence greater than 1.5m, given the length of the site's frontage and the character of the locality, is acceptable if setback so as to enable significant screening landscaping.

·           The proposed caravan park will comprise a large number of sites containing self-contained dwellings with very limited vegetation among and/or between these dwellings and in this context, significant landscaping to screen the development from the road, whether fenced or not, is anyway necessary.

·           A fence of a height of, say 2m, on a mound of 1m or higher is however not acceptable.

·           Any front fence would need to be no higher than 1.8m if located on existing ground level, or 1.5m if located on a mound

·           Any front fence should be setback at least 5m where the landscaping buffer has a width of 10m and 4m otherwise.

 

While the application does not incorporate drawings that comprehensively satisfies the above details, conditions of consent can ensure that this be the case.  

 

C 10.3 Landscaping

 

Clause C 10.3 provides as follows:

Element Objective

To provide an attractive environment within the development and to protect and enhance the amenity and character of surrounding areas.

 

Performance Criteria

The area reserved for recreation and communal activities (clause C10.2) must be common landscaped area(D). Council requires particular attention to be given to landscaping of street frontages and site boundaries, screening of amenities buildings and parking areas, and landscaping to increase the privacy and amenity of occupants. A landscape plan must be prepared for the whole of the proposed site, to address the above specific matters and to enhance climate control and the visual appearance of the development.

Particular consideration will be given to:

-      The provision of appropriate trees on the site;

-      The retention wherever possible of the existing trees on the site;

-      The use of existing topographical features, earth mounding and terrace areas to create useful and visually pleasing recreation areas, and to assist screening where necessary;

-      The orientation of recreation areas and landscaped areas(D) with regard to sunlight and prevailing winds;

-      The provision of sufficient areas adequately shaded against the summer sun and allowing adequate penetration of winter sun;

-      Any other matters contained in Part H - Landscape.

 

Part G Parking and Vehicle Circulation

 

Access and parking arrangements must be in accordance with clauses 92 to 100 of the Local Government (Manufactured Home Estates, Caravan Parks, Camping Grounds and Moveable Dwellings) Regulation 2005 (caravan park regulations). The relevant DCP provisions are discretionary provisions

Parking

The application proposes a 216 site caravan park & camping ground and a 2 bedroom manager’s residence.  Clause 96(1) of the Regulations and Table G2.2 of Part G of Chapter 1 of DCP 2010 require 1 car space per caravan or camping site. Clause 97 of the Regulations requires 1 visitor space per 10m long-term sites, 1 visitor space per 20 short term sites and 1 visitor space per 40 camp sites (in each case the number of sites is rounded up to calculate required number of spaces). Table G2.2 of Part G of Chapter 1 of DCP 2010 requires 1 visitor space per 10 camping or caravan sites plus 1 for the manager.

The application also proposes a new shop to replace the existing shop – clause 124 (1)(a) of the Local Government (Manufactured Home Estates, Caravan Parks, Camping Grounds and Moveable Dwellings) Regulation 2005 does not permit the use of the caravan park or camping ground for any commercial purpose other than a caravan park or camping ground or an associated purpose. Accordingly, the shop is only for the use of the residents of the caravan and camping sites and therefore no additional parking is needed for this component.

 

Spaces required          =          216 sites @ 1/site + 1 visitor space/10 sites + 1 for Manager

                                    =          216 + 22 +1

                                    =          239

 

Spaces proposed        =          216 on site + 23 off site + 1 for manager

                                    =          216 + 23 + 1

                                    =          240

The application proposes sufficient car spaces to satisfy the provisions of Council’s DCP.

Parking must also be accordance with clauses 96 to 98 of the Local Government (Manufactured Home Estates, Caravan Parks, Camping Grounds and Moveable Dwellings) Regulation 2005 (caravan park regulations).

 

Spaces required          =          80 long term sites (incl. manager’s residence) @ 1 car space per site

                                                 + 1 visitor space per 10 sites
77 short term sites @ 1 car space per site + 1 visitor space per 20 sites
60 camp sites @ 1 car space per site + 1 visitor space per 40 sites

                                    =          90 (80 + 10) + 81(77 + 4) + 62(60 + 2)

                                    =          233

Spaces Proposed       =          216 (on site car spaces + 1 managers residence + 23 visitor

                                    =          240 spaces

The application proposes sufficient car spaces to comply with the caravan park regulations.

Internal access

The application proposes to maintain the divided access road to provide separate entrance and exit to the site. The entrance/exit road and forecourt is in accordance with the caravan park regulations.

The application proposes one-way access roads of at least 4m in width and two way access roads of at least 6m in width in accordance with the caravan park regulations.

A revised layout dated 14/11/11 issue DA4.1 has amended the number of sites and reorganised the camping and cabin access in the northern section of the park.

Conditions can be imposed to ensure the access roads are sealed and provided with adequate lighting.

 

Part N Stormwater Management

 

A revised Concept Stormwater Management Report has been submitted by Greg Alderson & Associates.

The plan proposes the use of infiltration detention tanks and a number of vegetated bio retention basins. The stormwater from the cabins is to be directly connected to the detention tanks.

The infiltration tanks comprise a total length of over 500m in 5 sections located under various internal roads. Excavation of up to 1.4m is required with the tanks at a depth of 500mm and an invert depth of 1m- 1.4m. 

1m deep retention basins are proposed adjacent to two sections of the northern boundary with four smaller basins scattered through the site.

The Stormwater Report also envisages “minor’ site regrading to direct overland flow.

This plan is supported and suitable conditions can be imposed in a development consent to require detailed design and calculations for the stormwater management facilities recommended in the conceptual stormwater management plan prior to issue of the construction certificate

Attention needs to be paid to the timing of the construction of the proposed stormwater controls.

It is also considered that the construction of stormwater controls should be required to be undertaken prior to Stage 2 and before the placing of any new self contained dwellings on the site.

 

Development Control Plan 2010 Chapter 21 Social Impact Assessment

 

Requirement

Requirement

Proposed

Complies

A5 What development does this plan apply to

Caravan park

Caravan Park

Yes

 

Development Control Plan 2010 Chapter No 21

 

The consideration of DCP 21 in the SEE is brief and does not follow the format required. It concludes that the development will result in a positive social impact due on the basis an alleged increase in affordable housing and continuation of a mixed range of sites.

 

Further comment in regard to Chapter 21 has not been sought. The site has long standing use as a caravan park and the use of the site for this purpose long established in the public mind. The proposed mix of sites accords with a view presented by Council officers in the report to Council in regards to a prior, withdrawn application that proposed a considerably more intense redevelopment of the site.

In this context, the proposed redevelopment can be concluded to be consistent with the Objectives of Chapter 21 which are as follow:

 

A4       Objectives of this Chapter

 

The general objectives of this Chapter are:

 

·               To assist in achieving cohesive, sustainable and resilient communities within the Shire;

·               To enhance consistency, certainty and transparency in Council’s assessment of the positive and negative social impacts of proposed development;

·               To maximise the positive social impacts of development such as improved access, amenity, affordable housing provision, employment opportunity and safety; and

·               To minimise the negative social impacts of development such as increased traffic congestion, restriction of access to facilities, services and transport, loss of employment opportunity, loss of existing affordable housing stock, loss of public safety or perceived public safety.

 

Further assessment of the proposal against the provisions of Chapter 21 is not warranted.

 

3.4       The likely impacts of that development, including environmental impacts on both the natural and built environments, and social and economic impacts in the locality

 

Natural Environment

 

The western part of the site is situated in the zone 1(d) and land in this zone extends for approx 240m along the southern boundary. The eastern boundary of the Zone 1(d) land abuts a 10m to 40m wide strip of land in the Zone 7(b) and the eastern boundary of the Zone 7(b) land abuts land in the Zone 7(a) which includes a wide section of Tallows Creek.

 

The existing caravan park is situated within the Zone 1(d). Between the eastern boundary of the approved dwelling sites and the eastern boundary of the Zone 1(d) is an area of a width (east-west) varying from 30m at its northern part to 95m at its southern part and which is depicted on the endorsed plan to the existing Local Government Act approval as “Outdoor Recreation Area.”

 

The developed part of the caravan park site contains remnant and landscape vegetation of various species. The most ecologically valuable area within the Zone 1(d) is located in its eastern part, i.e. approved dwelling sites and in the area depicted as “outdoor recreation area.”  The site contains Coastal Cypress Pine Forest, which is an Endangered Ecological Community, in its south-eastern corner. Remnant Swamp Sclerophyll Forest, also an Endangered Ecological Community, and wetland habitat is located in the southern part of the lower, level land in the eastern part of the site.

 

The proposed development will require extensive tree removal in the developed part of the caravan park site including of environmental weed trees, will delete several undeveloped south-eastern sites situated in high conservation value vegetation and will incorporate ecological enhancement in the undeveloped eastern part of the site.

 

An Ecological Assessment has been submitted with the application which includes proposed vegetation management

 

The environmental enhancement/management that can be required as a component of a development consent would result in an environmental gain.

 

A Tree Removal Plan dated 8-4-2011 has been submitted. This proposes retention of a number of swamp mahogany and coastal cypress trees across the developed part of the site and this plan should be called up in any consent to the proposal. It is noted that the site layout was amended to retain three mature coastal cypress trees on the northern boundary near Broken head Road., however the proposed stormwater management has placed the protection of these trees at risk and this matter is taken up in this report in comments re clause 52 of the Byron LEP.

 

It is recommended that environmental weeds be removed from the development area including all cadaghi, camphor laurel, slash pine, umbrella trees and cocos palms. 

 

The proposed site layout does not require the classification of the eastern part of the Zone 1(d) land for “Outdoor Recreation Area” as is the case in the existing Local Government Act approval. The submitted site plan depicts sections of this eastern part as “Community 8 Ecological Restoration.” The proposed site plan enables the focus of vegetation management to be on the coastal cypress and swamp sclerophyll communities and the area in the south east of the site.

 

It is recommended that the southern half of vegetation community 6, vegetation community 2 and vegetation community 4 as depicted in Figure 3, Ecological Assessment prepared by Blackwood dated August 2010, be set aside for ecological protection and enhancement to offset development-related tree removal on-site and improve biodiversity values. This area can also be delineated in the submitted Site Plan as that part of the site between the eastern boundaries of Long-term sites 24 and 33-41 and the SEPP 14 boundary to the east and that part of the site to the south of Long-term site 24.

 

These activities are to include weed removal and tree planting at a compensation rate of 10:1 for vegetation removed and which removal is to be calculated on the basis of the quantities of the following species indicated for removal in Table 7 of the Ecological Assessment: Swamp mahogany, Broad leaved Paperbark, Coastal Banksia, Flooded Gum, Turpentine.

 

The area to the east of Long-term sites 24 and 33-35 are to suitably fenced and signposted to prevent human access other than for regeneration purposes.

 

The vegetative screen along Broken Head Road to incorporate native species that occur in coastal cypress communities as described in the Scientific Committee’s Final Determination for the endangered ecological community. Only coastal cypress seeds from trees occurring on site but from outside the EEC (as defined by Community 4 in Free (2010)) should be propagated and used in this area. Coastal cypress seedlings from outside the EEC that occur on the site may be transplanted into the landscaped area. All other species used in landscaping are to be of local provenance.

 

Where valued trees, including Swamp mahogany, Coastal Cypress, Brushbox, Turpentine and Tuckeroo are to be retained, suitable protection measures should be in place.

 

The requirement for a final Environmental Enhancement and Management Plan can be made a condition of any development consent.

Social and Economic Impacts in the locality

 

The proposed development comprises a substantial change to the existing caravan park in regard to the area dedicated to camping and the number of camp sites and by greatly increasing the number of self contained dwellings.  The maintenance of a distinctive and amenable camping area on the site is critical to the social character of the locality.  Such maintenance requires the provision of some level of communal cooking/eating facility. A substantial bbq area is specified in the current Local Government Act approval Site Plan and current provision of same comprises a large covered area with barbeques, washing up sinks, benchtops and tables with benches.  No such facility is proposed. 

 

The current application initially proposed a “kitchen pavilion” adjacent to the existing pool and close to camp sites (see superseded drawing no. 16 – alterations to admin building dated 14-09-2010.). The application has since been amended and a “new wading pool” is proposed adjacent to the “existing pool” and the “kitchen pavilion” is deleted (see drawing no. 8 alterations to admin building dated 21-7-2011.) Drawing No. 17 – Amenities dated 24/10/2011, depicts the proposed new amenities building within the camping area and includes an 1m x 2m area annotated as “B” adjacent to the amenities building which is presumed to refer to a bbq. Land needs to be made available for covered cooking and eating area in order that the amenity of the camping area is not unreasonably compromised to the detriment of the locality.  The applicant has indicated agreement to reinstate the kitchen pavilion as initially proposed and a consent can be so conditioned.      

 

3.5       The suitability of the site for the development

 

Traffic/Roadworks

The RTA’s Guide to Traffic Generating Developments (GTTGD) does not provide any guidance for traffic generation associated with caravan parks and camping grounds. The RTA’s GTTGD recommends a rate of 4 - 5 trips per dwelling for small units and flats (up to 2 bedrooms) and 5 - 6.5 trips per day for larger units and town houses (3 or more bedrooms). Accordingly, a trip generation rate of 5 trips per site is considered reasonable and the traffic generation is estimated as follows:

Existing Traffic Generated     =   254 sites (53 long term, 71 short term & 130 camping) @ 5 trips/site

                                               =   1,270 trips

Proposed Traffic Generated  =   217 sites (80 long term (incl. managers res.), 77 short term & 60

                                                    camping) @ 5 trips/site

                                               =   1085 trips

Traffic Increase                      =   reduction of 185 trips

The application is estimated to decrease peak daily traffic volumes. However, an increase in long term sites and caravan sites will likely increase the annual traffic volumes as the occupancy rate will likely be much higher.

Having regard to the likely annual traffic increase, an assessment of the safety of the intersection of Broken Head Road and the driveway entrance is warranted. Council’s 2009/10 traffic counts indicate an AADT of 14,668. Assuming a 50/50 traffic split and 10% peak hour volume, gives a peak hour traffic volume of 735 vehicles in each direction on Broken Head Road. Assuming a 10% peak hour volume of the traffic generated by the proposal and a 70/30 peak hour split gives a maximum peak hour volume of  77 trips per hour turning into and 33 trips per hour turning out of the driveway in each direction, or vice versa depending on morning or afternoon peak hour. Based on figure 4.9 (b) of Austroads Guide to Road Design - Part 4A: Unsignalised and Signalised Intersections, chanelised left and right turn lanes (type “CHR” & “CHL”) should be provided on Broken Head Road for the access driveway.

The existing bus bay and shelter, opposite the existing entrance to the site will need to be adjusted to facilitate the necessary intersection works and a new bus bay and shelter should be constructed for the southbound lane.

 

Preliminary engineering plans have been submitted by Greg Alderson & Associates #1141788. Plans indicate that a CHR(S) & AUL with associated road widening can be provided.

 

Conditions will be required to obtain Roads Act approval for an intersection in accordance with Austroads Guide to Road Design - Part 4A: Unsignalised and Signalised Intersections. Works will also include relocating the existing Bus Bay and shelter and constructing a new Bus Bay and shelter on the south bound lane.

 


External Access

Broken Head Rd is a fully constructed urban collector road affording physical and legal public road frontage to the subject lot.

The existing access has separated ingress and egress. The existing intersection takes the form a typical basic rural layout (Austroads type BA, formerly type A). The sight distance is good in both directions.

The submitted site plan (Dwg No. 1, Issue DA 4 by Thinktank Architects dated 21-7-2011) proposes separated entry and exit access roads. The width of access on either side of the median strip must be minimum 5m at the boundary and splayed out to the roadway and should be constructed in accordance with Council’s standards.

Having regard to the traffic volumes (see comments under traffic), the intersection should be upgraded by providing auxiliary lanes to allow traffic to bypass a vehicle waiting to turn right or slowing to turn left (Austroads type AU, formerly type B).

The proposed fire trail on the northern property boundary should also be provided with a driveway constructed to Council’s standards and suitable locked gates/bollards to ensure that the driveway is only used for emergency access.

Conditions should be imposed to ensure the driveways and the main intersection are constructed in accordance with Council and Austroads standards.

 

Staging of development – infrastructure provision

 

Amenities buildings

 

An existing amenities building is located in that part of the site designated as Stage 1 and a second existing amenities building is located in that part of the site located in Stage 2. The submitted Site Plan deletes these amenities buildings and depicts a new such building in the camping area for Stage 3.

 

The applicant has proposed that the new Stage 3 amenities building be constructed as part of Stage 2 and completed before the demolition of the existing Stage 2 amenities building.

 

The applicant has stated that all long and term sites are to be reserved for self-contained dwellings.

 

However, the potential demand for community facilities over and above those proposed for Stage 3 will extend well into the life of the development. For example, the currently approved 154 camp sites will remain until Stage 3 of the development.

 

Further, until such time as each site contains a dwelling, it is prudent to conclude that vacant sites will be available for use for non self-contained accommodation, e.g. a camper van.

 

It is necessary that the existing two amenities buildings remain in operation until all sites within Stages 1 and 2 contain self contained dwellings.

 

Stormwater management

 

It is discussed in this report in comments in regard to part N of Chapter 1 of DCP 2010 that all stormwater infiltration tanks and retention basins should be required to be completed prior to the commencement of Stage 2 and prior to the erection of any new self-contained dwellings on the site generally. 


 

3.6       Submissions made in accordance with this Act or the regulations

 

No public submissions

 

3.7       Public interest

 

It is not in the public interest to support the development without the landowner’s consent and a refusal is recommended for this reason. The proposed development does not otherwise compromise the public interest.

 

4.         DEVELOPER CONTRIBUTIONS

 

4.1       Water & Sewer Levies

 

Council’s Water and Sewer division advises as follows:

 

Current ET entitlement: 145.8 ET

Existing development load: 152.4 ET

Developer Servicing Charges have not been paid for the shortfall of 6.6 ET.

 

The following calculations rely upon the information provided in the submitted Site Plan dated 14-11-11 and the submitted Water & Sewer Provision Schedule dated 16-11-11.

 

STAGE 1

 

This development stage is for 41 Long term x 2 bedroom units; 29 Short term x 2 bedrooms and 8 Short term x 1 bedroom.

 

Development use

Number/area

ET Rate

ET

Long term sites – 2 bedroom

41

0.75

30.75

Long term sites

(53-41=) 12

0.6

7.2

Short term sites – 2 bedroom

29

0.75

21.75

Short term sites – 1 bedroom

8

0.5

4

Short term sites

(71-29-8=) 34

0.6

20.4

Camping sites

130

0.6

78

Total

254

 

162.1

 

Stage 1 of the proposed development generates an additional Bulk Water, Water and Sewerage load of 162.1 – 145.8 = 16.3 ET.  Council can supply water and sewerage to the proposed development to payment of Developer Servicing Charges.  These figures are at today’s date.

 

Stage 1 Conditions required:

 

STAGE 2

 

This development stage is for 10 Long term x 2 bedroom units; 5 Long term x 1 bedroom; 15 Short term x 2 bedrooms and 11 Short term x 1 bedroom.

 

Development use

Number/area

ET Rate

ET

Long term sites – 2 bedroom

(10+41=) 51

0.75

38.25

Long term sites – 1 bedroom

5

0.5

2.5

Long term sites

(53-51-5=) Nil

0.6

 

Short term sites – 2 bedroom

(15+29=) 44

0.75

33

Short term sites – 1 bedroom

(11+8=) 19

0.5

9.5

Short term sites

(71-44-19=) 8

0.6

4.8

Camping sites

130

0.6

78

Total

257

 

166.05

 

Stage 2 of the proposed development generates an additional Bulk Water, Water and Sewerage load of 166.05 – 162.1 = 3.95 (4) ET.  Council can supply water and sewerage to the proposed development to payment of Developer Servicing Charges.  These figures are at today’s date.

 

Stage 2 Conditions required:

 

 

STAGE 3

 

All of the currently approved camp sites are within the part of the site identified as Stage 3.

 

This development stage is for 21 Long term x 2 bedroom units; 1 Long term x 1 bedroom; 2 Short term x 2 bedrooms; 10 Short term x 1 bedroom and a reduction in the total camping sites to 60 only.

 

Development use

Number/area

ET Rate

ET

Long term sites – 2 bedroom

(21+10+41=) 72

0.75

54

Long term sites – 1 bedroom

(1+5=) 6

0.5

3

Long term sites

(53-72-6=) Nil

0.6

 

Short term sites – 2 bedroom

(2+15+29=) 46

0.75

34.5

Short term sites – 1 bedroom

(10+11+8=) 29

0.5

14.5

Short term sites

(71-46-29=) Nil

0.6

 

Camping sites

60

0.6

36

Total

213

 

142

 

Stage 3 of the proposed development generates no additional Bulk Water, Water and Sewerage load as 142 ET (Stage 3) is less than 166.05 ET (Stage 2). 

 

Stage 3 Conditions required:

 

 

4.2       Section 94 Contributions

 

There is a net reduction in the number of sites from 254 sites to 216 sites and therefore no increase in demand.

 

5.         CONCLUSION

 

The application cannot be granted consent in the absence of owner’s consent. This would likely be ultra vires and would anyway result in the granting of a development approval that cannot be undertaken as the landowner’s signature is required for the Construction Certificate and the granting of such approval may provide the landowner with the basis for legal action to nullify the consent.

 

The proposed development otherwise complies with relevant environmental planning provisions and is unlikely to generate a significant environmental impact.  

 

6.         RECOMMENDATION

 

That pursuant to Section 80 of the Environmental Planning & Assessment Act 1979, development application 10.2010.576.1 for proposed modifications to layout and facilities of an existing approval to operate a caravan, camping, and relocatable cabin park, be refused for the following reasons listed in Annexure 8(d) #1170228.

 

 

 

 

ORGANISATIONAL SUPPORT – EXECUTIVE MANAGER’S REPORTS

 

Report No. 12.29.

PLANNING - Legal Status Report as at 23 January 2012

Executive Manager:   Organisational Support

File No:                        COR653000 #1186040

 

Principal Activity:

Legal Services

 

Summary:

 

This report contains a status report on appeals being managed by the Legal Services Unit and outstanding costs relating to such proceedings.  Where so resolved, the General Manager will seek to negotiate settlement of these matters in accordance with his general delegations.

 

The following summaries include details of ‘Legal costs YTD’ and ‘Expert Witness Cost YTD’. These amounts are costs billed this financial year to date. They do not necessarily reflect the amounts incurred in this financial year to date only the amounts billed to date. Inclusion of this column in the regular legal services report will keep Councillors informed of the amount billed in matters as they progress.

 

 

NOTE TO COUNCILLORS:

 

In accordance with the provisions of S375A of the Local Government Act 1993, a Division is to be called whenever a motion for a planning decision is put to the meeting, for the purpose of recording voting on planning matters.  Pursuant to clause 2(a) under the heading Matters to be Included in Minutes of Council Meetings of Council's adopted Code of Meeting Practice (as amended) a Division will be deemed to have been called by the mover and seconder of all motions relating to this report.

 

 

RECOMMENDATION:

 

That this report be noted.


Report

 

This is the regular Legal Services Status Report to Council on Land and Environment Court appeal matters (and if applicable appeals to the Supreme Court from Land and Environment Court decisions) relating to development applications, s96 modification applications and applications for approvals under the Local Government Act.

 

Please note that in addition to the 1 Land and Environment Court case referred to below being Ralph Lauren and Ors v Byron Shire Council, there are also 2 other sets of Land and Environment Court proceedings (LEC 40068/2011 and 40167/2011) and 2 sets of Supreme Court proceedings (SC 426979/2010 and SC 363913/2010), involving various Belongil residents. These are insurance matters in which Council has subrogated its rights to its insurer. These matters, as with all insurance damages claims, are beyond the scope of this status report and are therefore not included.

 

Matter:

BSC ats Bowen LEC 41265/2011

Solicitor:

Marsdens

Barrister:

Nil

Legal Costs YTD:  Nil

Expert Witness Costs YTD:  Nil

Date Last Report:  New matter

Other Expenses YTD: Nil

Type of Appeal:  Class 4

Address:  Lot 2 DP 579392 No. 15 Browning Street, Byron Bay

Brief History of Substantive Matter:  In this application the owner seeks certain declarations that the premises have alleged ‘existing use rights’ as a “shop and commercial premises” and that those rights would extent to the use of the premises as a “beauty salon with ancillary hairdresser shop”.

History of Council Resolutions Relating to the Appeal: This is a new matter – refer to separate report

Brief Description: This application seeks declarations that the premises have existing use rights for ‘shop and commercial premises’ and that those existing use rights would allow use of the premises as a beauty salon and ancillary hairdresser shop.

Staff have repeatedly advised that a ‘hairdressers’ shop is permissible in the zone and subject to the specific design of the proposal and assessment thereof, a hairdressers with ancillary beauty salon (the opposite of what was applied for) could be permissible in the zone.  However, the applicant is pressing their application for a prohibited use in the zone.

Status: The Application was served on Council on 10/1/12. The first callover is listed for 3/2/12.

 

 

Matter:

BSC ats Freedman LEC 11135/2011

Solicitor:

Marsdens

Barrister:

Nil

Legal Costs YTD:  Nil

Expert Witness Costs YTD:  Nil

Date Last Report:  15/12/11

Other Expenses YTD: Nil

Type of Appeal:  Class 1

Address:  Lot 6 SP 81554, 6/137 Beach Road, Broken Head

Brief History of Substantive Matter:  Development Application 10.2011.191.1 originally sought approval of use of the tourist accommodation premises for up to 35 functions per year but after public exhibition the application was amended to seek approval for use for up to 18 functions per year with each function to be limited to a maximum of 70 guests.  DA 10.2011.191.1 was determined under delegation with the application being refused. The applicants lodged a s82A application for review of the decision to refuse DA 10.2011.191.1, which is being reported to Council for determination – refer to separate report.

 

(The use of the premises for functions was the subject of complaints to Council which resulted in compliance action, in the form of Orders, being issued against the property owner. The owner lodged an appeal with the Land and Environment Court against the Orders issued by Council.

On 9 June 2011 Council resolved Res 11-471 to “adjourn its action on the Order served on Mr Freedman until after the associated DA 10.2011.191.1 is determined”.  Subsequently, Council withdrew the Orders, pending determination of the DA, and the appeal against the Orders was discontinued.)

History of Council Resolutions Relating to the Appeal: The compliance matter was reported to Council on 9 June 2011 and resulted in Res 11-471 referred to above.

The Class 1 appeal against refusal of DA 10.2011.191.1 was reported to Council on 15 December 2011 when Council resolved (Res 11-1047) to delegate management of the appeal to the General Manager including, without limitation, delegation to enter into consent orders approving the development subject to appropriate conditions, if legal advice recommends that course of action.

Brief Description: The appeal is against Council’s refusal of DA 10.2011.191.1.

Status: The Application was served on Council on 10/12/11. At first directions hearing on 9/1/12 Council requested adjournment of the matter pending Council’s consideration of the s82A Review application at its meeting on 9/2/12. The request was granted with the matter being adjourned to 20/2/12, with a direction being made that, should the appeal continue, Council must file its Statement of Facts and Contentions prior to the next return date.

 

 

Matter:

Ralph Lauren 57 Pty Ltd & Ors v Byron Shire Council LEC 40184/2010

Solicitor:

HWL Ebsworth

Barrister:

$5,700.00

Legal Costs YTD:  $81,252.21

Expert Witness Costs YTD:  Nil

Date Last Report:  1/12/11

Other Expenses YTD: Nil

Type of Appeal:  Class 4

Address:  Lots 1 & 2 SP 65430 Don Street, Lot 2 Sec 2 DP 1623 The Esplanade and Lot 1 Sec 1 DP 1623 Border Street and Border St and Don St road reserves, Belongil.

Brief History of Substantive Matter:  Application for Mandatory Orders against the Council seeking orders that Council do works to and repair & maintain geobag revetments at Border and Don Streets, Belongil.

History of Council Resolutions Relating to the Appeal: The matter was first reported to the Strategic Planning Committee Meeting of 28/03/2010 but was not reached. At the Extraordinary meeting on 1/4/2010 Council resolved to defend the Appeal, to authorise the General manager to manage the litigation under delegation, to endorse a proposal contained in confidential document (#949444) and to allocate a budget of $50,000 from accumulated surplus (Resolution 10-914).

At the Ordinary meeting of 8/4/2010 Council resolved to note the report that had originally been put to the 28/03/2010 Strategic Planning Committee meeting (Resolution 10-247).

The matter was further reported to Council 11/11/2010 meeting.

Brief Description: In response to their anticipation of a severe weather event considered by the landowners as likely to result from Cyclone Ului, certain landowners commenced a Class 4 Application against Council seeking mandatory orders that Council do certain work by 19 March 2010 and further mandatory orders that Council repair and maintain the geobag revetment walls at Border and Don Streets. Council had agreed to allow the landowners to do certain sand nourishment works that they considered were necessary.

After the perceived emergency in March 2010 passed, the landowners discontinued their claim for interlocutory relief (ie works by 19 March 2010) but maintained their claim seeking Orders that Council did not comply with the development consent when it constructed the existing geobag walls at Border and Don Streets and that Council be ordered to do all work necessary to achieve compliance with the development consent (which based on the landowners’ then evidence was equivalent to a request for orders that Council demolish and then rebuild the existing geobag walls at Don and Border Streets and then maintain them). The landowners are also seeking an order that Council pay the landowners’ costs of the litigation.

Status: The Application was served on Council on 18/3/10.  On that day Council issued a Roads Act approval to allow the landowners to carry out urgent and nourishment works and Council offered to enter into consent orders allowing the landowner to do sand nourishment works on conditions similar to those it had imposed on the Roads Act approval. After some negotiation and some changes, the landowners agreed.

On 1/4/2010 the landowners’ solicitors advised that the landowners would be pressing their application against the Council. At the callover on 1/4/2010 discussion occurred about the landowners’ need to amend their Points of Claim (given that the 19/03/2010 being the date they were seeking orders for Council to do works by had passed). At the callover the matter was adjourned to 23/4/2010 with no other directions being given.

In accordance with Res 10-914 Council made a without prejudice offer to the landowners to settle the litigation. That offer was rejected by the landowners. A callover occurred 23/4/2010 with directions being made. A call over occurred on the 25/06/2010 where the matter was listed for further callover on 27/8/10. As Council’s attempts at settlement pre the mediation were unsuccessful and no counter-offers had been put by the landowners for Council’s consideration, Council had to proceed to prepare its response to the Summons, as amended, as well as evidence.

A Notice to Produce was received by Council on 30/6/10 listing various categories of documents required to be produced.  Staff retrieved literally 1000’s of documents which were forwarded to Council’s Solicitors for production.

Mediation was held at Council on 26/7/10 at the end of which the mediation was adjourned, which would have allowed the parties a further opportunity to call another mediation session if both agreed but that did not occur and the mediation was subsequently terminated.

A directions hearing occurred on 24/9/10 at which the following orders of the Court were made:

1.   That by 1/10/10, Council serve upon applicants copies of the further documents the Applicant had requested production of;

2.   Applicants serve on the Respondent their proposed categories of documents for discovery by the respondent by 24/9/10;

3.   Respondent to advise Applicants in writing of any objections to the categories of discovery sought by the Applicants by 12 noon 30/9/10, reserving to the Respondent its right to object to an order for discovery generally.

4.   Matter be listed for further directions on 1/10/10.

5.    Respondent to advise the Applicants in writing of whether or not it objects to the proposal set out in paragraphs 6-10 of Mallesons’ letter of 16/8/10 (being a proposal to excavate in front of the geobag walls for the purposes of establishing the AHD level of the foundation rows of geobags) and if applicable, the conditions upon which it would consent to that proposal, by 29/9/10.

Council did not object to Mallesons’ proposal to excavate for evidence gathering purposes. Despite Council agreeing, the proposed excavation did not occur. Actions in relation to the Applicant providing categories of documents, Council objecting to some of the categories and the Court’s determination in relation to those were the subject of a separate reports to Council Ordinary Meeting 11/11/2010.

Council was ordered by the Court to provide formal discovery of the Court adjudicated categories of documents by 2 December 2010, despite Council’s repeated advice, via its solicitors, to Mallesons and to the Court, that many thousands of documents would be required to be discovered and that the timeframe was insufficient. Council engaged a third party information technology service provider to support electronic discovery of the documents. Council searched for, identified, categorised and reproduced well over 6,000 documents (from over 1.03 million documents). Those documents had to be checked by Council’s solicitors, for relevance and privilege, and uploaded and formatted by the IT service provider. It was not possible for the review and uploading to occur by the 2 December 2010 and Council’s solicitors sought an extension to the timeframe. Extension to the discovery timetable was agreed to by the Applicants.  The costs to Council of the discovery have been and will continue to be significant. The matter was listed for a further directions hearing on 11/02/2011, at which time the matter was adjourned at the request of the Applicants. At the further directions hearing held on 18/3/11 the Court made directions in relation to the filing of evidence and scheduling of a hearing.

The Applicants served a further 2 Notices to Produce on Council, each of which contained multiple categories of documents, which Council have complied with forwarding the necessary documentation to Council’s solicitors for review for relevance and privilege prior to production.

The substantive issues in these proceedings were the subject of an agreement that Council would undertake certain works at the Don and Border Street sites in the 2011/2012 financial year.  The works were due for completion by 31 October 2011 but were subject to Council being able to obtain all necessary approvals from other government agencies. Despite Council's best efforts, Council could not get all required approvals, eg from Marine Parks or Lands, and therefore it was not be possible to carry out the works prior to the due date. Negotiations occurred with the Applicants whereby it was agreed to extend the date for the proposed works to 16 December 2011 subject to weather.  The works were completed by Council on 21 December 2011, with some minor delays due to high tides at the time.

The applicants were advised of the compliance with the Consent Orders immediately and asked to confirm that they would be discontinuing the proceedings as previously indicated. To date there has been no response. If a response is not received Council will consider asking the Court to relist the matter to press for the discontinuance. 

 

 

Matter:

BSC ats JA Rogers LEC 31022/2011

Solicitor:

Marsdens

Barrister:

Nil

Legal Costs YTD:  $749.76

Expert Witness Costs YTD:  Nil

Date Last Report:  1/12/11

Other Expenses YTD: Nil

Type of Appeal:  Class 3

Address:  Lot 3 DP 701520 No 342 Main Arm Road, Mullumbimby

Brief History of Substantive Matter:  Appeal concerning rating declaration as farmland.

History of Council Resolutions Relating to the Appeal: This is a new matter – refer to separate report

Brief Description: In 2005 the landowner applied for farmland rating for the 4.3ha property at Main Arm. On the basis of the use of the property and the information available at that time, the application was granted. In May 2011 Council undertook a general review of categorisation in May 2011 and sought updated information from the landowner. On the basis of the now current use and the updated information it was determined “that the dominant use … is for residential purposes and the farming activities conducted … [did] not represent a significant and substantial commercial purpose or character”. The landowner applied for an internal review which was unsuccessful. The landowner then appealed.

Status: The Application was served on Council on 17/11/11. The first callover was listed for 9/12/11. The matter has been discontinued is now complete. Due to quick finalisation of the matter without any findings or orders and the small costs incurred, it is not intended to provide a detailed final report unless required by Council.

 

 


Matter:

BSC ats SJ Connelly (Ventlink) LEC 10786/2010

Solicitor:

Marsdens

Legal Costs YTD:  $9,902.33

Expert Witness Costs YTD:  $23,820.00

Date Last Reported:  1/12/11

Type of Appeal: Class 1 Appeal.

Address:  Cnr Lawson and Fletcher Streets, Byron Bay (former Council Chambers building) 

Brief History of Substantive Matter:  Approval was granted to DA 10.2005.733.1 for expansion of a boarding house development on the site of the former Byron Bay Council Chambers. A s96 application 10.2005.733.2 sought variation to the condition imposing developer contributions. The approval issued to the s96 application approved some but not all of the variations to the developer contributions sought by the applicant.

History of Council Resolutions Relating to the Appeal:  The matter was first reported to Council on 11/11/2010 at which time Council resolved that “the General Manager be authorised to manage the litigation in accordance with the General Manager’s general delegations” and “that without limiting the general delegations, the General Manager be expressly given delegation to reach agreement on the method of calculation and/or amount of s94 Developer Contributions imposed by way of conditions in accordance with legal advice, if any” (Res 10-898).

Brief Description:   The appeal is against conditions imposed on the consent granted to development application 10.2009.610.1 relating to developer contributions.

Status:  The appeal was served on Council on 08/10/2010. At the time, the appeal was against ‘deemed refusal’ of the s96 application. However, the s96 application was subsequently determined and the appeal changed to an appeal against conditions. The first callover was held on 01/11/2010 at which time the matter was adjourned to enable the Applicant to consider the conditions of the s96 approval issued by Council and file any Amended Statement of Facts and Contentions. At the further directions hearing on 15/11/2010 the matter was identified as one to be listed for a s34 Conference and subsequent discussions occurred as to suitable dates, with the s34 Conference eventually listed for 07/12/2010.

An agreement was unable to be reached at the s34 conference but rather than discontinue the conciliation, the parties agreed to adjourn the conciliation to enable the Applicant time to provide additional information in the form of an expert report on traffic generation and to amend the modification application to change the number of beds in the hostel to 308 (ie a reduction from the approved number of beds).  The Applicant put forward some further amendments to the proposal which would increase availability of onsite parking which is currently under assessment by staff.

Due to the complexity of the arguments raised in relation to developer contributions for this particular site, and existing staff workloads, Council had to retain an external expert witness to give evidence on the s94 issues.

The matter was listed for further mention on 21/3/11 at which time it was listed for hearing on 15, 16 & 17/6/11 commencing onsite at 10.30am.  By eCourt on 23/3/11 the hearing dates were vacated and replaced with 22, 23 & 24/6/11 commencing onsite at 10.30am.  Council were served with a Notice to Produce on 8/4/11 which was complied with.

The hearing took place on 22 – 24 June 2011 before Commissioner Dixon in Sydney, after the Court changed the venue, but it was not finalised. The hearing continued on 1 - 2/9/11 in Sydney.

At the hearing, following conclusion of Applicant’s oral submissions, proceedings were adjourned on basis that written submissions would be provided, which subsequently occurred. Judgment has been reserved and it is not known when the judgment will be handed down.

At the time of preparation of this report, judgment has still not been received. (Since the hearing in this matter, there have been some Court of Appeal cases pending and, recently one Court of Appeal decision, relating to s94 developer contributions which may have precedent implications for this matter and which might be a reason for the delay in the delivery of the judgment in this matter.)

 

 

Matter:

BSC ats Stebbing LEC 11144/2011

Solicitor:

Marsdens

Barrister:

Nil

Legal Costs YTD:  Nil

Expert Witness Costs YTD:  Nil

Date Last Report:  15/12/11

Other Expenses YTD: Nil

Type of Appeal:  Class 1

Address:  Lot 11 DP 1016333 14-16 Teven Street, Brunswick Heads

Brief History of Substantive Matter:  The property the subject of the Appeal is located at Nos 14-16 Teven Street, Brunswick Heads.

 

The site contains an existing commercial development comprising gymnasium, squash courts and indoor swimming pool approved via BA 106/72 on 11 September 1972. A number of alterations have been approved over the 38 years since the original approval was granted.

History of Council Resolutions Relating to the Appeal: Development Application 10.2010.606.1 for “Alterations/Additions to Existing Gymnasium and change of use to Affordable Rental Housing (comprising 29 x 1 bedrooms, 4 x 2 bedrooms and 2 bedroom manager’s residence) was reported to Council on 30 June 2011 with a recommendation that it be approved subject to conditions. Council resolved to refuse the development application with reasons (Res 11-534).

The Appeal was reported to Council on 15/12/11 with a recommendation that delegations be granted to enter into consent orders on the basis of the conditions as reported to Council on 30/06/11. Council resolved to defend its refusal of the development application (Res 11-1091).

Brief Description: Class 1 appeal against the refusal of DA 10.2010.606.1.

Status: The Application was served on Council on 6 December 2011. Council filed its Statement of Facts and Contentions prepared in accordance with legal advice and on the basis of the relevant Council resolutions.  Prior to the first Directions Hearing Council’s solicitors advised the Applicant that they would require leave of the Court if they wanted to rely on amended plans but the Applicant disagreed. 

At the first Directions Hearing on 9/1/12, the applicant was directed to file and serve a Notice of Motion for leave of the Court to rely on amended plans by 17/01/12 and the matter was adjourned to 20/01/12. The Applicant filed their Motion and Council indicated that it would not object to the proposed amended plans subject to the additional legal, assessment and advertising costs associated with amending the plans being paid. The Applicant objected to having to pay any costs arising from the amendment.

At the Motion Hearing on 20/1/12, the Applicant was granted leave to rely on amended plans and Order to pay Council’s legal costs of $500.00 and costs of re-notification to submitters of $285.00 and the Court directed Council to file any amended Statement of Facts and Contentions by 3 February 2012.

The plans for the proposed development, as amended:

·         now reflect Stage 1 as reported to Council on 30/06/11 (ie Stage 2 is not being pressed as part of this appeal);

·         make changes to one ground floor unit to delete the bedroom area and kitchen facilities and replace those with a store room (ie the bathroom is being retained but attached to a storeroom space not a unit)

·         Increase carparking with the addition of 8 carspaces on the western side of the carparking area (with the area not previously designated for any particular use)

In accordance with the directions of the Court, the Council will now need to provide details of the amendments via letters to all people who lodged formal submissions to the development application. In addition, Council staff will need to review the amended plans and determine whether any of the Contentions, which were based on Council’s reasons for refusal, have been addressed by the changes and/or require amendment due to the changes to the plans.

 

Matters in respect to which there are costs outstanding

 

The following status table relates to outstanding cost matters arising from appeals, which were finalised prior to 01/01/2011 and/or which were subsequently reported on in the Legal Services status reports. The General Manager pursuant to the following delegated authority will negotiate settlement of the cost matters:

 

“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 column ‘Solicitor costs billed this financial year to date’ figures reflect only those costs billed in cost recovery work not those costs billed or incurred in running the substantive proceedings.

 

1.      Costs awarded to Council

 

Matter

Brief Description of Matter

Current Status

Last reported

Solicitor

Costs billed this financial year to date

BSC v Fletch Pty Ltd

Tristran Pde, Mullumbimby

 

LEC 50035 of 2005

Class 4 prosecution in the LEC for clearing of vegetation without requisite consent

Referred to debt recovery agents for action (as per Res 10-89).

Registered with Local Courts on 10/6/10.  Writ of execution has been passed to Sheriff. Garnishee orders issued by Kogarah Court .

1/12/11

Nil

Nil

Byron Shire Council v Singh, G

“Byron Bay Manor” St Helena

Lot 28 DP 1069577

LEC 41428 of 2005

Class 4 proceedings seeking declaratory orders that development comply with development consent

After issue of a bankruptcy notice, an instalment payment arrangement was implemented, requiring the total debt (including additional debt costs and interest) to be paid by23/12/11. At the date of the last report all payments had been received in accordance with the agreed timetable. However, the final payment (approximately 9% of the debt) was not made by the due date and the matter is to be referred to Council’s debt recovery agent again.

1/12/11

Nil

Nil

Byron Shire Council v Vos, Peter

Scheaffes Rd Goonengerry

LEC 50128 of 1998

Class 5 – Prosecution for breach of TPO. Costs awarded to Council.

Matter to be the subject of a future report.

 

1/12/11

Nil

Nil

Byron Shire Council v Wain & Wengarin P/L

 

LEC 50116 -50119 of 1998

Class 5 Proceedings – Council prosecuted defendants for pollution of Belongil Creek. Council awarded costs.

Matter to be the subject of a future report.

1/12/11

Nil

Nil

Chris Lonergan & Associates v BSC

(Coffee)

Byron Street, Bangalow

LEC 10450 of 2002

Class 1 Appeal – Refusal of DA 10.2000.484.1 for proposed 4 residential flats. Council awarded costs.

Referred to Council’s debt recovery agent for further action (as per Res 10-89).

Was registered with Local Courts on 10/6/10.  Writ of execution had been passed to Sheriff. Notice of Non Levy from Sheriff.  Company has ceased trade and no further action can be taken on this debt. 

Will need to be the subject of a report

1/12/11

Nil

Nil

 

Dansar Pty Ltd and Mr John Vaughan v BSC

Lot 1 DP 1002730

Cavvanbah Street

Byron Bay

 

SC 30051 of 2002

 

Supreme Court proceedings Proceeding discontinued costs owed to Council pursuant to Supreme Court rules.

Costs assessment completed with Council’s claimable costs being determined in the sum of $40,247.26.

The amount has not been paid. A brief will need to be prepared for Council’s debt recovery agents.

1/12/11

HWL Ebsworth

Nil

Vaughan John v Byron Shire Council

Lot 1 DP 1002730

Cavvanbah Street

Byron Bay

 

LEC 10683 of 2001

56A Appeal –Appeal against the decision of Commissioner Hoffman upholding Council’s refusal of

10.2001.64.1. Appeal dismissed costs awarded to Council.

Costs assessment completed with Council’s claimable costs being determined in the sum of $40,247.26.

The amount has not been paid. A brief will need to be prepared for Council’s debt recovery agents.

1/12/11

Nil

Nil

BSC ats White

Browns Crescent McLeods Shoot

LEC 10519/2010

Class 1 appeal against conditions imposed on DA 10.2009.610.1

A fixed costs order in the amount of $4,936.33 was made in Council’s favour. Council resolved on 10/2/11 (Res 11-39) to suspend debt recovery action until 11/04/11 but debt remains outstanding.

Matter has been referred to Council’s debt recovery agents for recovery.

1/12/11

Nil

Nil

 


2.       Costs awarded against Council

 

Matter

Brief Description of Matter

Current Status

Last reported

Solicitor

Costs billed this financial year to date

Byron Shire Council v John Vaughan and Anne Vaughan

Manfred Street Byron Bay

LEC 30164/97, 40596/99 & 40428/01

Court of Appeal & LEC proceedings concerning Council assertion of encroachment under the Encroachment Buildings Act. Costs awarded against Council.

Claim of 14,175.03 for disbursements remains unverified by the costs claimant. Council is not required to pay unless proof of incursion of the expenditure is produced and no further action is required of Council at this time.

1/12/11

Nil

Nil

BSC ats Ralph Lauren 57 Pty Ltd LEC 40184/2010

Don and Border Streets Belongil

LEC Class 4 Appeal commenced by landowners against Council seeking orders that Council undertake repair and maintenance works at Council’s costs.

Costs Order issued against Council on 15/10/10 as a result of Council objecting to Applicant’s request for formal Discovery of documents and information. No claim has been lodged to date. No further action will be required until a claim is lodged, then Council can either attempt to reach an agreement on a fixed amount or require the Costs Applicant to have their costs claim formally assessed.

1/12/11

Nil

Nil

 

 

 

 


 

Report No. 12.30.

PLANNING - BSC ats Bowen LEC 41265/2012

Executive Manager:   Organisational Support

File No:                        COR653000 x 80.2012.1.1 x 10.2011.42.1 #1186039

 

Principal Activity:

 

Legal Services

Summary:

 

To advise Council of a new Class 4 Appeal in which a landowner is seeking certain declarations in relation to alleged existing use rights.

 

 

NOTE TO COUNCILLORS:

 

In accordance with the provisions of S375A of the Local Government Act 1993, a Division is to be called whenever a motion for a planning decision is put to the meeting, for the purpose of recording voting on planning matters.  Pursuant to clause 2(a) under the heading Matters to be Included in Minutes of Council Meetings of Council's adopted Code of Meeting Practice (as amended) a Division will be deemed to have been called by the mover and seconder of all motions relating to this report.

 

 

RECOMMENDATION:

 

That Council not defend the proceedings as currently filed with the Land and Environment Court and file a ‘Submitting Appearance save as to costs’ in matter number 41265/2012.

 

 

Attachments:

 

·       Class 4 Application #1189266 [4 pages]......................................................................... Annexure 23(a)

·       Development Application Evaluation Report 10.2011.42.1 #1061148 [10 pages]............... Annexure 23(b)

·       S82A Review Report 10.2011.42.1 #1169196 [6 pages].................................................... Annexure 23(c)


Report

 

The property the subject of this application is located at 15 Browning Street, Byron Bay. 

 

Development Application 10.2011.42.1 sought approval for “change of use of shop” to a use that is prohibited under the current zoning, and relied on existing use rights to support the application. DA 10.2011.42.1 was refused under delegated authority on 21 December 2011. The applicant lodged a s82A Review application which was also considered and rejected under delegation.

 

Attached at Annexures 23(b) and (c) are the assessment reports for both the original DA and s82A Review, giving reasons for refusal.

 

Concurrently, with the s82A Review application, the applicant also lodged a new Development Application 10.2011.455 for a ‘hairdressers’, which the applicant had been advised was a permissible use in the zone. DA 10.2011.455 was determined under delegated authority and was granted approval subject to conditions on 20/12/2011.

 

The Appeal

 

On 10 January 2012 the landowner commenced a Class 4 Appeal against Council in the Land and Environment Court seeking Declarations that:

 

1.   “the use as a shop and commercial premises … is an ‘existing use’ as defined in s106 … of the Environmental Planning and Assessment Act …”;

 

2.   “the existing use [as a shop and commercial premises] extends to the use of the premises as a beauty salon with ancillary hairdresser shop as proposed in Development application 10.2011.42.1…”

 

3.   “alternatively, … the change of use of the existing shop area … is permissible with consent pursuant to the provisions of s108 [of the Environmental Planning and Assessment Act]

 

4.   “in the further alternative … the change of use of the existing shop area … is permissible with consent under the Byron Local Environmental Plan 1988.

 

That is, notwithstanding that the applicant has obtained an approval for a hairdressers, and has been advised that an application for a hairdressers with an ancillary beauty salon, subject to the design and assessment of the proposal, might be permissible, the applicant is insisting on relying on alleged existing use rights to seek approval for a ‘beauty salon’ (which is not permissible) with an ancillary hairdressers.  It can only be assumed, that this course of action is being taken by the landowner to attempt to preserve the alleged existing use rights by applying for a non-permissible use, however, commentary on the utility of such an approach is beyond the scope of this report.

 

From the copy Assessment Reports at Annexures 23(b) and (c), it will be seen that the Applicant was not able to satisfy Council that the former use which would have generated any existing use rights, had not been abandoned. Available information suggests that the premises have been used for a permissible use, ie a gym or “recreational facility (health and fitness)”, for some years.

 

Before the Applicant would be entitled to the declarations being sought, they would need to satisfy the Court that that the ‘existing use’ as it was originally approved had not been abandoned.  Under s107(3) of the Environmental Planning and Assessment Act, a use is ‘presumed’ to be abandoned if it ceases to actually be so used for a continuous period of 12 months, and the applicant will bear the burden of rebutting that presumption.

 

If the applicant were able to obtain the declarations being sought, a development application for the proposed use (ie ‘beauty salon’ with ancillary ‘hairdresser’) would still have to be lodged or a Class 1 Appeal against the refusal of the s82A would have to be lodged no later than 18 June 2012, and in either case Council would still have the opportunity to consider the application.

 

If the applicant is unable to obtain the declarations being sought, the applicant already has a consent for a hairdresser which it can rely on or the applicant could lodge a new development application for any other permissible use. 

 

The Class 4 application was served on Council on 10 January 2012.  Council has instructed Marsdens Law Group to file an appearance on Council’s behalf to preserve Council’s rights if it decides to defend the application. 

 

Theoretically, Council’s options in this matter could include resolving:

 

1.       to defend the proceedings (as a result of which it would be asking the Court to not make any of the declaration and to declare instead that the prior use of the premises as a shop or commercial premises had been abandoned pursuant to s107(3)); or

 

2.       to file a submitting appearance on the current applicable (which means that Council would agree to be bound by the findings of the Court without having made submissions or put evidence or arguments forward).

 

It is not known at this time whether defending the proceedings up to a contested hearing would be an option reasonably open to Council. To defend the proceedings at hearing, Council would have to be in a position to be able to put evidence, eg eye witness statements and/or documentation, contrary to the evidence relied upon by the landowner. Given that Council currently has no details on what evidence the landowner will rely upon, it is unknown whether Council staff or other people on behalf of Council could give evidence to reasonably rebut that landowner’s evidence.

 

The option of filing a submitting appearance would appear to be reasonably open to Council at this time, if Council are content to allow the Court to consider the landowner’s evidence without objection from Council.  Legal advice has been obtained which confirms that this option is available.

 

If after Council filed a submitting appearance, the applicant sought leave of the Court to change the declarations being sought and/or sought to commence Class 1 (appeal against DA refusal) proceedings instead of the Class 4 (declaration) proceedings, in most cases Council would have an opportunity to review its position on the submitting appearance.

 

The first callover in this matter is scheduled for 3 February 2012. Council have instructed its solicitors to seek an adjournment until after 9 February 2011 so that Council can have the opportunity to consider whether it wants to defend the proceedings or file a Submitting Appearance, save as to costs.

 

Financial Implications

 

If Council resolve to file a Submitting Appearance, Council’s legal costs would be limited to an estimated $2,000 – 4,000 and staff resources would be limited to preparing this report and the final report on the judgment in the matter.

 

An estimate of legal costs of defending the appeal has been obtained and is $25,000 not including any costs for witnesses which could not be estimated at this time.

 

These are Class 4 proceedings in which ‘costs normally follow the cause, ie whichever party is successful is usually entitled to a costs order unless there is some exceptional circumstances, such as disentitling conduct. If Council defend this appeal and are unsuccessful there would be a reasonable risk it could be ordered to at least some of the Applicant’s costs. Conversely, if Council defend the proceedings and are successful, it would have reasonable prospects of obtaining a costs order in its favour for at least part of its costs.  If Council files a Submitting Appearance, the risk of Council being ordered to pay any of the Applicant’s costs would be significantly reduced.

 

Statutory and Policy Compliance Implications

 

The case law in relation to existing use rights, and abandonment of existing uses, is extensive and there has been nothing raised to date in the applications that would indicate that the facts of this matter would raise any novel legal issues. Therefore any decision in this matter is most likely to turn on its own particular facts and not have any precedent implications.

 

Relevant sections of the Environmental Planning and Assessment Act include:

 

106 Definition of “existing use”

In this Division, "existing use" means:

(a)     the use of a building, work or land for a lawful purpose immediately before the coming into force of an environmental planning instrument which would, but for Division 4 of this Part, have the effect of prohibiting that use, and

 

(b)     the use of a building, work or land:

(i)      for which development consent was granted before the commencement of a provision of an environmental planning instrument having the effect of prohibiting the use, and

(ii)      that has been carried out, within one year after the date on which that provision commenced, in accordance with the terms of the consent and to such an extent as to ensure (apart from that provision) that the development consent would not lapse.

 

107 Continuance of and limitations on existing use

(1)     Except where expressly provided in this Act, nothing in this Act or an environmental planning instrument prevents the continuance of an existing use.   

 

(2)     Nothing in subsection (1) authorises:

 

(a)     any alteration or extension to or rebuilding of a building or work, or

(b)     any increase in the area of the use made of a building, work or land from the area actually physically and lawfully used immediately before the coming into operation of the instrument therein mentioned, or

(c)     without affecting paragraph (a) or (b), any enlargement or expansion or intensification of an existing use, or

(d)     the continuance of the use therein mentioned in breach of any consent in force under this Act in relation to that use or any condition imposed or applicable to that consent or in breach of any condition referred to in section 80A (1) (b), or

(e)     the continuance of the use therein mentioned where that use is abandoned.

 

(3)     Without limiting the generality of subsection (2) (e), a use is to be presumed, unless the contrary is established, to be abandoned if it ceases to be actually so used for a continuous period of 12 months.

 

108 Regulations respecting existing use

 

(1)     The regulations may make provision for or with respect to existing use and, in particular, for or with respect to:

 

(a)     the carrying out of alterations or extensions to or the rebuilding of a building or work being used for an existing use, and

(b)     the change of an existing use to another use, and

(c)     the enlargement or expansion or intensification of an existing use.

 

(2)     The provisions (in this section referred to as "the incorporated provisions") of any regulations in force for the purposes of subsection (1) are taken to be incorporated in every environmental planning instrument.

 

(3)     An environmental planning instrument may, in accordance with this Act, contain provisions extending, expanding or supplementing the incorporated provisions, but any provisions (other than incorporated provisions) in such an instrument that, but for this subsection, would derogate or have the effect of derogating from the incorporated provisions have no force or effect while the incorporated provisions remain in force.

 

(4)     Any right or authority granted by the incorporated provisions or any provisions of an environmental planning instrument extending, expanding or supplementing the incorporated provisions do not apply to or in respect of an existing use which commenced pursuant to a consent of the Minister under section 89 to a development application for consent to carry out prohibited development.

 

 

 

SOCIETY AND CULTURE - EXECUTIVE MANAGER’S REPORTS

 

Report No. 12.31.

Request to join the steering committee for a proposed Byron Shire Local Tourism Organisation

Executive Manager:   Society and Culture

File No:                        ADM900040 #1186600

 

Principal Activity:

 

Economic Development

Summary:

 

Byron Shire Council has been approached by Dr Meredith Wray and local tourism stakeholders to join a Steering Committee investigating the possible establishment of a Local Tourism Organisation (LTO) for Byron Shire.

 

Management met with Dr Wray at her request in January 2012 and advised that Council would need to formally consider and resolve on its participation before staff could be involved. This report offers Council the opportunity to consider the LTO proposal, and to determine its representation (if any) on the Steering Committee. The Steering Committee intends to finalise a recommendation on a preferred LTO structure by April 2012.

 

Management has made no commitments about Council’s participation in either the Steering Committee or any future LTO. Management considers, however, that the work of the Steering Committee potentially aligns with Strategy 2.1.2 of the Tourism Management Plan – Determine the governance, management and distribution system for a levy scheme.

 

It also potentially progresses outstanding Council Resolution (10-869):

That Council resolve that further investigation and discussions begin on developing the governance framework to establish a Shire-wide Sustainable Tourism Association to assist Council in its management of actions identified in Council's adopted Tourism Management Plan, which may be identified as part of the special rate application to the NSW Department of Local Government.

 

 

RECOMMENDATION:

 

1.        That Council note that local tourism stakeholders have established a steering committee to discuss the possible establishment of a Local Tourism Organisation for Byron Shire, and have requested Council participation on the committee.

 

2.        That Council nominate one Councillor to represent Byron Shire Council on the Local Tourism Organisation Steering Committee.

 

 

Attachments:

 

·       A Local Tourism Organisation for Byron – Presentation by Dr Meredith Wray
#1187311 [7 pages] ...................................................................................................... Annexure 32(a)

·       Summary of Byron Local Tourism Organisation Workshop – Dr Meredith Wray
#1187153 [4 pages] ...................................................................................................... Annexure 32(b)

 


Report

Local tourism stakeholders have commenced discussions on the possible establishment of a Local Tourism Organisation (LTO), and have requested Council’s participation on a Steering Committee. The Steering Committee intends to make a recommendation on the preferred structure for an LTO by April 2012.

 

The LTO proposal potentially has relevance to a number of actions in Council’s Tourism Management Plan. For example, the Tourism Management Plan has an objective to determine the governance, management and distribution for a levy scheme (strategy 2.1.2).

 

In addition, at its Ordinary Meeting on 21 October 2010, Council resolved (10-869):

 

That Council resolve that further investigation and discussions begin on developing the governance framework to establish a Shire-wide Sustainable Tourism Association to assist Council in its management of actions identified in Council's adopted Tourism Management Plan, which may be identified as part of the special rate application to the NSW Department of Local Government

.

During 2010 and 2011 the Tourism Advisory Committee (TAC) and Tourism Levy and Governance Project Reference Group considered options for the governance, management and distribution of a levy scheme, including possible models for a Shire-wide Tourism Association. This work is currently on hold, and scheduled to recommence mid-2012, prior to community consultation on a possible tourism levy in the second half of 2012 (Resn 11-938).

 

In December 2011, local tourism stakeholders commenced meetings on the possible establishment of an LTO for Byron Shire. Councillors Cameron and Richardson were invited to attend a workshop on the LTO on 8 December 2011, but were unable to attend due to a conflict of scheduling with an Extraordinary Council meeting. A PowerPoint presentation from the workshop; and a summary of workshop findings are attached at Annexures 32(a) and 32(b).

 

In January 2012, Dr Meredith Wray – the facilitator for the establishment of the proposed LTO – requested a meeting with Council management to discuss the LTO proposal, and to request Council membership on the Steering Committee. Dr Wray was advised that, while there may be alignment between the LTO’s goals and some of the objectives of the Tourism Management Plan, Council would need to be given the opportunity to formally consider and resolve on its participation, prior to any involvement by Council staff.

 

Dr Wray advised that the State Government (through Destination NSW) is supportive of the establishment of an LTO for Byron Shire, and that funding may become available if a collaborative organisation can be formed. Management considers this a potential opportunity to meet some of the objectives of Council’s Tourism Management Plan, and potentially also to assist in responding to Resolution (10-869) with additional resourcing and research capability from the business community.

 

On 17 January 2012, Byron Shire Council received correspondence from Dr Wray formally inviting Council to join the LTO Steering Committee. The letter states that the purpose of the LTO would be to:

 

  1. undertake a strategic approach to destination management, tourism marketing and sustainable tourism development
  2. better coordinate the business interests of tourism within Byron Shire
  3. improve access to expertise, support and funding for marketing and product development initiatives and
  4. foster a more cooperative approach to tourism across government and business interests that align with the strategies and actions identified in the Byron Shire Tourism Management Plan, including community values for tourism.

 

Management recommends that, should Council wish to participate in discussions on a future LTO, a Councillor be nominated to join the Steering Committee. The Tourism Officer could also attend these meetings, with the minutes of each LTO Steering Committee meeting to be provided to Councillors via the Councillor extranet.

 

A final report of the LTO Steering Committee is proposed by Dr Wray for April 2012, and this could also be reported to Council via the Tourism Advisory Committee for consideration.

 

Financial Implications

 

Nil associated with this report

 

Statutory and Policy Compliance Implications

 

Byron Shire Tourism Management Plan 2008 – 2018

 

 

 

Report No. 12.32.

Youth Council Appointments 2012

Executive Manager:   Society and Culture

File No:                        ADM308700 #1187728

 

Principal Activity:

 

Community Services

Summary:

 

A selection panel met on 18 January 2012 to consider nominations for membership of the 2012 Youth Council. Eleven young people with a variety of interests and experience have been selected for Council’s endorsement.

 

Nominations for vacant positions were opened on 30 October 2011 and closed on 15 January 2012. Nineteen nominations were received for the 11 potential vacancies.

 

The Youth Council Constitution provides for a core group of 10-15 young people from the Shire. Four 2011 Youth Council members indicated that they would like to continue as members in 2012, as provided for in the Constitution. One other 2011 Youth Council member has indicated that he would like to continue as ‘co‑facilitator’ given that his age now exceeds the upper limit for membership.

 

 

RECOMMENDATION:

 

1.       That Council note that the Youth Council selection panel met on 18 January 2012 to select new members for 2012.

 

2.       That Council endorse the selection panel’s recommendation for the appointment of the eleven proposed new Youth Council members listed in Confidential Annexure 37.

 

3.       That Council note that four 2011 Youth Council members have identified that they would like to continue in 2012, consistent with the Youth Council’s Constitution.

 

4.       That Council note that one 2011 Youth Council member, whose age now exceeds the upper limit for membership, has indicated that he would like to continue as ‘co-facilitator’ of the Youth Council in 2012.

 

5.       That Council issue a media release identifying the Youth Council members for 2012 and recognising the achievements of the Youth Council in 2011.

 

6.       That Council write to the unsuccessful applicants for 2012 Youth Council membership thanking them for their applications.

 

7.       That Council write to thank the outgoing members of the 2011 Youth Council for their contributions.

 

 

Attachments:

 

·       CONFIDENTIAL Proposed Youth Council Appointments 2012 #1188652 [1 page]................ Annexure 37

 


Report

 

Nominations for the Byron Youth Council 2012 opened on 30 October 2011 and closed on 15 January 2012.

 

Youth Council members and Council staff visited Byron High School, Mullumbimby High School, Cape Byron Rudolph Steiner School and Shearwater Steiner School to promote Youth Council membership and to distribute application forms. Promotional material and application forms were placed on Council’s website. A media release was sent to local media encouraging young people to apply for Youth Council. Posters were placed at schools, at the Byron Youth Service, Byron Cultural and Community Centre, Byron Youth House, Mullumbimby District & Neighbourhood Centre, and community notice boards. In addition, nomination packages were sent to principals and Student Representative Councils at five local schools.

 

A selection panel made up of Youth Council representatives and Council staff met on 18 January 2012 to assess the nineteen new member applications. Councillors were invited to participate in the selection process. Applications were assessed with regard to the following criteria:

 

  1. the part of the shire in which the applicant resides
  2. aged between 12 -25, aiming to keep an even distribution of ages
  3. gender
  4. indigenous or non-English speaking background
  5. key interests
  6. social networks
  7. life experiences.

 

The Youth Council Constitution provides for a core group of 10-15 young people from across the Shire. Four 2011 Youth Council members indicated that they would like to continue as members in 2012, as provided for in the Constitution. This meant that eleven places were potentially available. Nineteen applications were received and assessed, and eleven recommendations are made in Confidential Annexure 37.

 

The selection panel prioritised balanced representation across different age groups, and the majority of those not selected were from the 12-14 years age bracket. Thirteen applications were received from this age group. Unsuccessful applicants will be encouraged to be involved in Youth Council events and will be invited to resubmit applications at the next intake process.

 

The Youth Council Constitution states:

 

once appointed, members may remain on the Youth Council up to the age of 25 years and/or until the end of the elected Council term. An intake process will occur each year to fill vacancies.

 

The four (4) continuing members will be:

  1. Justin Fenwick
  2. Ngurung Brown
  3. Amy Loh
  4. Theotime Pinon

 

An additional 2011 Youth Council member, Karim Kaufman, would also like to continue, but is now outside the upper age limit for membership. He has requested to continue in the capacity of co‑facilitator of the 2012 Youth Council. Management supports this. Other outgoing 2011 members have also indicated their desire to stay in touch with the group, offering ongoing support and guidance.

Once they have been endorsed by Council, names of new Youth Council members will be made public through a media release.

 

Financial Implications

 

Nil from this report.

 

Statutory and Policy Compliance Implications

 

Byron Shire Council Youth Council Constitution

Byron Shire Council Youth Policy (2010)

Byron Shire Council Youth Strategy and Action Plan (2011-2015)

 

 


 

Report No. 12.33.

Revised status report on the implementation of the Disability Access and Inclusion Plan 2008-2013

Executive Manager:   Society and Culture

File No:                        ADM303000 #1184913

 

Principal Activity:

 

Community Services

Summary:

 

The purpose of this report is to provide Council with a revised implementation status report for the Disability Access and Inclusion Plan (DAIP) 2008-2013. The status report incorporates the amendments in resolution 11-1001 from the Council Extraordinary Meeting on 8 December 2011.

 

Of the 145 strategic actions identified across the seven objective areas in the DAIP, 30% are complete, 49% are in progress/ongoing, 18% have not been actioned or are on hold, and 3% are no longer relevant.

 

 

RECOMMENDATION:

 

1.       That Council receive and note the revised status report on the implementation of the Disability Access and Inclusion Plan 2008-2013.

 

2.       That Council note the progress made towards achieving the actions in the Disability Access and Inclusion Plan (DAIP) 2008-2013.

 

3.       That Council note that a further report will be prepared in relation to resolution 11-1001, referring to subsequent resolutions relating to the Disability Access and Inclusion Plan.

 

 

Attachments:

 

·       Implementation Progress Report – Disability Access and Inclusion Plan 2008-2013
(Years 1-3) #
1187178 [4 pages]...................................................................................... Annexure 33(a)

·       Implementation Status – Disability Access and Inclusion Plan (DAIP) 2008-2013
# 1187080 [39 pages].................................................................................................... Annexure 33(b)


Report

 

At the Extraordinary Meeting on 8 December 2011 Council resolved in part:

 

11-1001 Resolved:

 

1.       That Council receive in February 2012 a revised Review of the Disability Access and Inclusion Plan 2008-2013 and any subsequent resolutions including 10-1118 and ensure the review of actions correlate to actual numbering in the Plan.

 

The purpose of this report is to provide Council with a revised implementation status report for the Disability Access and Inclusion Plan (DAIP) 2008-2013. The status report incorporates the amendments in resolution 11-1001 from the Council Extraordinary Meeting on 8 December 2011.

 

Attached at Annexure 33(a) is an Implementation Progress Report – Disability Access and Inclusion Plan 2008-2013 (Years 1-3) (#1187178). This document relates specifically to part 1 of resolution 11-1001, where the figures shown correlate to each individual action in the DAIP. The report also lists achievements by year to date and outlines the proposed way forward for the next two years.

 

The focus areas in the Disability Access and Inclusion Plan (DAIP) 2008-2013 are:

 

1.      Governance and Leadership

2.      Information and Communication

3.      Built Environment and Infrastructure

4.      Strategic Planning and Development

 

5.      Leisure Recreation and Natural Environment

6.      Economy and Tourism

7.      Consultation and Community Engagement

 

 

145 strategic actions were developed for implementation across these seven focus areas over the 5-year period of the DAIP.

 

The following table represents the progress to September 2011:

 

Key Area

Strategic Actions

Completed

In Progress

Not Actioned

No longer relevant

Governance and Leadership

28

12 (43%)

10 (36%)

5 (18%)

1 (4%)

Information and Communication

15

5 (33%)

5 (33%)

5 (33%)

-

Built Environment and Infrastructure

29

5(17%)

20 (69%)

3 (10%)

1 (3%)

Strategic Planning and Development

21

5 (24%)

12 (57%)

4 (19%)

-

Leisure Recreation and Natural Environment

13

1 (8%)

9 (69%)

3 (23%)

-

Economy and Tourism

13

5 38%)

6 (46%)

1 (8%)

1 (8%)

Consultation and Community Engagement

26

11(42.3%)

9 (35%)

5 (19%)

1 (4%)

Total

145

44 (30%)

71 (49%)

26 (18%)

4 (3%)

 

Of the 145 Strategic Actions identified across the seven objective areas in the DAIP, 30% are complete, 49% are in progress/ongoing, 18% have not been actioned or are on hold, and 3% are no longer relevant.

 

For the status of each individual strategic action please refer to Annexure 33(b) - the Implementation Status – Disability Access and Inclusion Plan which has a brief comment for each action.

 

With reference to resolution 11-1001, a further report will be prepared in relation to subsequent resolutions relating to the Disability Access and Inclusion Plan.

 

Financial Implications

 

Nil from this report.

 

Statutory and Policy Compliance Implications

 

Local Government Act 1993

Disability Discrimination Act 1992

Disability (Access to Premises - Buildings) Standards 2010

NSW Anti Discrimination Act 1977 (amended 1994)

Building Code of Australia and relevant Australian Standards (particularly AS 1428 Design for Access and Mobility, and AS 4299 Adaptable Housing)

Byron Shire Council Disability Access and Inclusion Plan 2008-2013

Byron Shire Council Management Plan 2011-2014

Byron Shire Council Draft Shire-wide Development Control Plan (B14 ‘Access and Mobility’)

Byron Shire Council Draft Positive Ageing Strategy (2012-2016)

 

 

 

SOCIETY AND CULTURE - COMMITTEE REPORT

 

Report No. 13.1.

Report of the Tourism Advisory Committee Meeting held on 8 December 2011

Executive Manager:   Society and Culture

File No:                        ADM900020 #1179066

 

Principal Activity:

 

Economic Development

Summary:

 

This report provides the minutes of the Tourism Advisory Committee meeting held on 8 December 2011.

 

 

RECOMMENDATION:

 

1.    That Council note the minutes of the Tourism Advisory Committee meeting held on 8 December 2011 (#1165676).

 

2.    That in relation to Report No. 5.3 - 2012 Tourism Advisory Committee Forward Agenda, Council adopt:

 

Committee Recommendation TAC 5.3.1

 

That the Tourism Advisory Committee adopt the 2012 forward agenda as outlined in Annexure 3 of the Tourism Advisory Committee’s agenda for 8 December 2011 (#1165420). The priority projects for 2012 are:

a)        Development of an agreed identity for Byron Shire

b)        Implementation of the agreed identity for Byron Shire (tourism education program)

c)        Tourism Levy and Governance Framework

d)        Byron Shire Visitor Services Strategy

e)        Regional Visitor Services Strategy

f)          Tourism Management Plan annual report

g)        Volunteer tourism initiative

h)        Byron Shire visitor trails.

 

 

Attachments:

 

·       Report of Tourism Advisory Committee meeting 8 December 2011 #1165676 [3 pages]...... Annexure 6(a)

·       Tourism Advisory Committee Agenda 8 December 2011 #1146006 [147 pages].................. Annexure 6(b)

·       CONFIDENTIAL Annexure 2(a) TAC Agenda 8 December 2011 #1166481 [15 pages].......... Annexure 6(c)

 

Annexures 6(b) and 6(c) have been provided on the Councillors' Agenda CD only; an electronic copy can be viewed on Council's website at www.byron.nsw.gov.au/committees/tourism-advisory-committee.

 


Report

 

This report provides the minutes of the Tourism Advisory Committee (TAC) meeting of 8 December 2011 for consideration by Council.

 

At the meeting, the TAC discussed a number of issues including an update on consultation for the proposed Byron Shire identity; the Byron Shire Visitor Profile and Satisfaction Survey; and a forward agenda for 2012.

 

Most of the Committee’s recommendations were procedural. The forward agenda is put forward for Council’s adoption in this report.

 

Committee Recommendation TAC 5.3.1

 

1.    That the Tourism Advisory Committee adopt the 2012 forward agenda as outlined in Annexure 3 (#1165420). The priority projects for 2012 are:

a)        Development of an agreed identity for Byron Shire

b)        Implementation of the agreed identity for Byron Shire (tourism education program)

c)        Tourism Levy and Governance Framework

d)        Byron Shire Visitor Services Strategy

e)        Regional Visitor Services Strategy

f)         Tourism Management Plan annual report

g)        Volunteer tourism initiative

h)        Byron Shire visitor trails.

 

Management Comments

 

Management supports the Committee’s recommendation. The projects outlined in the forward agenda have been sourced and prioritised according to Council’s Tourism Management Plan.

 

Committee Recommendation TAC 5.3.1

 

2.    That the February meeting include adoption of Byron Shire identity and future direction.

 

Management Comments

 

Management notes that this recommendation does not require Council adoption as it is a procedural recommendation for the TAC in relation to agenda items for the February TAC meeting. At its February meeting, the TAC will consider the results of the identity consultation and public exhibition process. The Committee will then make a recommendation to Council regarding whether or not to adopt the proposed identity, which will be considered by Council at its Ordinary meeting on 1 March 2012. Council will make the final decision on the adoption of a proposed identity for Byron Shire.

 

Committee Recommendation TAC 5.3.1

 

3.    That Paul Spooner and Tanya Mattiocco be invited to join the Volunteer Tourism PRG (as per Resolution No. 11-404).

 

Management Comments

 

Management notes that Council resolved to form the Volunteer Tourism PRG at its Ordinary Meeting on 12 May 2011, as per Resolution 11-404. Council determined its membership from the Tourism Advisory Committee as being Councillor Richardson, Jim Beatson and Katharine Myres (Katharine Myres has since resigned from the Tourism Advisory Committee). The Tourism Advisory Committee Constitution states ‘Members of Project Groups must be able to demonstrate in their expression of interest relevant qualifications, skills and experience in sectors linked to the topic being addressed by the Sub-Committee’. Council may wish to consider inviting members of the community to submit an expression of interest to join the Volunteer Tourism PRG. This will ensure appointments made to the PRG are fair and equitable. Note: Community members may be consulted by members of the PRG as part of its work. However for ongoing membership Council may wish to consider a more formal/expression of interest approach.

 

The remaining Committee Recommendations are provided for noting in Annexure 6(a).

 

Financial Implications

 

Nil associated with this report.

 

Statutory and Policy Compliance Implications

 

Local Government Act 1993.

Byron Shire Council 2008 – 2018 Tourism Management Plan.

 

 

COMMUNITY INFRASTRUCTURE - CONFIDENTIAL REPORT

 

Report No. 15.1.

CONFIDENTIAL Tender Assessment – Management Contract Multi Purpose Facility BRSCC

Executive Manager:   Community Infrastructure

File No:                        BEN353010 x 132490 #1188588

 

Principal Activity:

 

Open Space and Recreation

Summary:

 

11-753 Resolved that in relation to the Management of the Byron Regional Sport and Cultural Complex Multi Purpose Facility, Council resolve under delegated authority that:

 

1.     Pursuant to Part 3 of the Local Government Act 1993 (NSW) and Part 7 of Local Government (General) Regulation 2005 (NSW) Council advertise for tenders (using the open tendering method) for the Management of the Multi Purpose Facility for a term of two (2) years.

 

Tenders were advertised in November 2012 and closed on 12 January, 2010.   One (1) tender was received. 

 

The tender process was conducted in accordance with the provisions of the Local Government (General) Regulation 2005.

 

 

RECOMMENDATION:

 

1.    That pursuant to Section 10A(2)(c) and (d) of the Local Government Act, 1993, Council resolve into Confidential Session to discuss the following report, CONFIDENTIAL Tender Assessment – Management Contract Multi Purpose Facility – Byron Regional Sport & Cultural Complex.

 

2.    That the reasons for closing the meeting to the public to consider this item be that:

 

(a)   information that would, if disclosed, confer a commercial advantage on a person with whom the council is conducting (or proposes to conduct) business.

(b)   commercial information of a confidential nature that would, if disclosed:

(i)    prejudice the commercial position of the person who supplied it, or

(ii)   confer a commercial advantage on a competitor of the Council, or

(iii) reveal a trade secret.

 

3.    That on balance it is considered that receipt and discussion of the matter in open Council would be contrary to the public interest, as disclosure of the confidential information could compromise the commercial position of the tenderers and/or of Council, could adversely affect Council’s ability to contract and/or could affect Council’s ability to attract competitive tenders in future tender processes.

 

 

Attachments:

 

·       CONFIDENTIAL Management of the Byron Regional Sport and Cultural Complex
(BRSCC) Multi Purpose Facility Tender No 2011 – 00050
#1190368 [5 pages]....................... Annexure 35


 

 

 

ENVIRONMENT AND PLANNING - CONFIDENTIAL REPORT

 

Report No. 15.2.

CONFIDENTIAL Old Byron Bay Beach Resort site, Bayshore Drive, Byron Bay

Executive Manager:   Environment and Planning

File No:                        134370, 134390, 161600, 179310, 109870, 109880, 93630, 93730,           134330,134350, 179260 #1185651

 

Principal Activity:

 

Planning

Summary:

 

The report provides an update to Council on process to determine the 1987 Development Consent for Byron Bay Beach Resort was legally commenced and whether that Consent is still operable.

 

 

RECOMMENDATION:

 

1.       That pursuant to Section 10A(2)(c) and (d) of the Local Government Act, 1993, Council resolve into Confidential Session to discuss the following report, namely Old Byron Bay Beach Resort Site, Bayshore Drive, Byron Bay.

         

2.       That the reasons for closing the meeting to the public to further consider this item be that it contains advice concerning litigation, or advice that would otherwise be privileged from production in legal proceedings on the ground of legal professional privilege.

 

3.       That on balance it is considered that receipt and discussion of the matter in open Council would be contrary to the public interest, as it could compromise the position of Council in current or future litigation and present a risk to public funds.

 

 

Attachments:

 

·       Byron Bay Beach Resort Site Map #1186709 [1 page]..................................................... Annexure 22(a)

·       Copy of site plan of development area for Becton tourist facility approved by Dept of
Planning #596996 [1 page]............................................................................................. Annexure 22(b)

·       Development consent for DA 87/0208 #1186170 [9 pages].............................................. Annexure 22(c)

·       Rejection of Section 96 Application #1017218 [1 page]................................................... Annexure 22(d)

·       Letter to HBL Ebsworth dated 15 December 2010 #1039324 [2 pages]............................. Annexure 22(e)

·       Council’s letter of 26 September 2001 #286672 [1 page]................................................... Annexure 22(f)

·       CONFIDENTIAL Legal correspondence in respect of Byron Bay Beach Resort

     #1181647 [14 pages]..................................................................................................... Annexure 22(g)

·       Legal opinion on commencement of consent #1191398 [16 pages].................................. Annexure 22(h)

·       Legal opinion on commencement of consent #1191408 [18 pages]................................... Annexure 22(i)


 

 

 

WATER AND RECYCLING - CONFIDENTIAL REPORT

 

Report No. 15.3.

CONFIDENTIAL Land Matters - Myocum Landfill

Executive Manager:   Water and Recycling

File No:                        ENG450000 #1191899

 

Principal Activity:

 

Waste and Recycling Services

Summary:

 

Council has resolved to progress with land purchases associated with the implementation of the Myocum Quarry Landfill project.

This report deals with costs associated with land valuations involved in the purchase process.

 

 

RECOMMENDATION:

 

1.    That pursuant to Section 10A(2)(c) of the Local Government Act, 1993, Council resolve into Confidential Session to discuss the following report, namely Land Matters – Myocum Landfill.

2.    That the reasons for closing the meeting to the public to consider this item be that:

The matters and information that can be listed as confidential are the following:

c)    information that would, if disclosed confer a commercial advantage on a person with who the council is conducting (or proposes to conduct) business.

3.    That on balance it is considered that receipt and discussion of the matter in open Council would be contrary to the public interest, as disclosure of the confidential information could confer a commercial advantage on a person with who the council is conducting (or proposes to conduct) business.


 

 

 

LATE REPORT – CORPORATE MANAGEMENT

 

Report No. 16.1.

Request for lifting of Caveat - Byron Bay Community Association - 69 Jonson Street Byron Bay Lot 1 DP524709

Executive Manager:   Corporate Management

File No:                        34360G #1191401

 

Principal Activity:

 

Property and Contracts

Summary:

 

Council has received a request from Byron Bay Community Association (BBCA) for Council to lift the Caveat on Lot 1 DP 524709 to enable changes to be made to the Title. The BBCA has written to Council in its capacity as Trust Manager of the newly created Byron Bay Community Reserve Trust.

 

Council has also received correspondence the NSW Department of Primary Industries – Crown Lands Division in respect to this matter.

 

This report has been prepared to allow Council to consider this request.

 

 

RECOMMENDATION:

 

That Council inform the Byron Bay Community Association that it will provide a letter stating that it consents to the lodgement of the mortgage between the National Australia Bank and the Byron Bay Community Reserve Trust and to the caveat being subordinate to the mortgage on the following conditions:

 

a)      That the registered mortgage in favour of Suncorp-Metway Limited is discharged and removed from the title of the property; and

 

b)      That Positive Covenant 8672172 remains registered on the title.                                    

 

 

Attachments:

 

·       Letter of request from Byron Bay Community Association #1179558 [2 pages]................. Annexure 41(a)

·       Letter or request from Dept of Primary Industries #1181147 [36 pages]............................ Annexure 41(b)

·       CONFIDENTIAL Request for legal advice #1181051 [2 pages]......................................... Annexure 41(c)

·       CONFIDENTIAL Legal advice 1 February 2012 #1192525 [7 pages]................................. Annexure 41(d)

 


Report

 

Council has received a request dated 19 December 2012 from Byron Bay Community Association (BBCA) for Council to “to remove its current Caveat” on Lot 1 DP 524709 to enable the lending authority to be changed on the title from Suncorp-Metway to the National Australia Bank (NAB) and the name of the borrower changed from the BCCA to the Byron Bay Community Reserve Trust [refer Annexure 41(a)]. The BBCA has written to Council in its capacity as Trust Manager of the newly created Byron Bay Community Reserve Trust and has stated that Council can re-lodge the Caveat behind the new mortgagee (NAB).

 

Council has also received correspondence dated 20 December 2011 the NSW Department of Primary Industries – Crown Lands Division (DPI) in respect to this matter [refer Annexure 41(b)]. The DPI under the cover of this letter provided Council with a copy of the letter of offer from the NAB to the Byron Bay Community Reserve in regard to the borrowing facilities approved.

 

The correspondence from the BCCA and the DPI was acknowledged on 22 December 2011. Both the BCCA and the DPI were advised that the request would be reported to the next Ordinary meeting scheduled for Thursday, 9 February 2012, and that on the basis that the caveat had been placed on the title in accordance with a resolution of Council, a further resolution would be required to enact this request.

 

Background

Council has previously received a request a request from the NSW Department of Primary Industries – Crown Lands Division for Council’s consent as Caveator to the recording by the Registrar of  the transfer of Lot 1 DP 524709, being the land upon which the Byron Bay Community and Cultural Centre is located.

 

The transfer of land was from the Byron Bay Community Association Incorporated to the State of New South Wales.

 

This request was the subject of Report No 12.14 to the Ordinary meeting of Council held on 30 June 2011. Council following consideration of the report resolved via Resolution 11-513 as follows:

 

Resolved that Council, as Caveator, authorise the General Manager to provide formal consent

under Section 74H(1) of the Real Property Act 1900 to the recording of a transfer by the

Registrar, transferring Lot 1 DP 524709 from the Byron Bay Community Association

Incorporated to the State of New South Wales.”

 

The transfer, which was dated 1 April 2011, of Lot 1 in DP 524709 from the BCCA to the State of NSW was registered on 7 November 2011, pursuant to section 134 of the Crown Lands Act 1989.

 

Lot 1 in DP 524709 was on 11 November 2011 declared to be Crown Land pursuant section 138 of the Crown Lands Act 1989 for “community purposes”. On the same day a reserve trust known as the Byron Bay Community Reserve Trust was established for the reserve and the BCCA was appointed as the Trust Manager (refer NSW Government Gazette No 109 dated 11 November 201 page 6563).

 

On 21 December 2011 Management sought legal advice in relation to the request from the BCCA [refer Confidential Annexure 41(c)] and received that advice on 1 February 2012 [refer Confidential Annexure 41(d)]. 

 

Management recommends that Council inform the Byron Bay Community Association that it will provide a letter stating that it consents to the lodgement of the mortgage between the National Australia Bank and the Byron Bay Community Reserve Trust and to the caveat being subordinate to the mortgage on the following conditions:

 

a)      That the registered mortgage in favour of Suncorp-Metway Limited is discharged and removed from the title of the property; and

 

b)      That Positive Covenant 8672172 remains registered on the title.

 

Financial Implications

 

There are no financial costs to be incurred by Council in the implementation of the recommendation for Council.

 

Statutory and Policy Compliance Implications

 

Section 74 H of the Real Property Act 1900 has been reproduced below:

 

“Real Property Act 1900 No 25

74H   Effect of caveat lodged under section 74F

(1)   Subject to this section, while a caveat lodged under section 74F remains in force:

 

(a)     the Registrar-General must not, except with the written consent of the caveator:

(i)    record in the Register any dealing, or

(ii)   grant any possessory application, or

(iii)   register any delimitation plan, or

(iv)  cancel the recording of any easement, or

(v)  extinguish any restrictive covenant,

 

if it appears to the Registrar-General that the recording of the dealing, the granting of the possessory application, the registration of the delimitation plan, the cancellation of the recording of the easement or the extinguishment of the restrictive covenant is prohibited by the caveat, and

 

(b)     the caveat does not have the effect of prohibiting:

 

(i)   the recording in the Register of a dealing, or

(ii)   the granting of a possessory application, or

(iii)   the registration of a delimitation plan, or

(iv)  the cancellation of the recording of an easement, or

(v)   the extinguishment of a restrictive covenant,

 

except to the extent that the recording of such a dealing, the granting of such an application, the registration of such a plan, the cancellation of the recording of such an easement or the extinguishment of such a restrictive covenant would affect the estate, interest or right claimed in the caveat.”

 

 

 

CONFIDENTIAL LATE REPORT – COMMUNITY INFRASTRUCTURE

 

Report No. 17.1.

CONFIDENTIAL Interim Management of BRSCC Multi Purpose Facility

Executive Manager:   Community Infrastructure

File No:                        BEN351010 X 132490 X 24.2008.5.1 #1193442

 

Principal Activity:

 

Open Space and Recreation

Summary:

 

Council resolved to proceed with a Management Contract (11-293) and (11-753) for the Byron Regional Sport and Cultural Complex (BRSCC) Multi Purpose Facility which was advertised and the tender evaluation is subject to a Confidential Report contained within this meeting’s agenda.

 

Council also resolved (11-1016) to officially open the site on 3 or 4 February 2012.  This has now been confirmed as 10 February 2012.

 

On this basis interim management of the multi purpose facility building needs to be considered until such time as on going arrangements have been established.

 

 

RECOMMENDATION:

 

1.       That pursuant to Section 10A(2)(c) of the Local Government Act, 1993, Council resolve into Confidential Session to discuss the following report, namely interim management of the Byron Regional Sport and Cultural Complex, Multi Purpose Facility.

 

2.       That the reasons for closing the meeting to the public to consider this item be that information that would, if disclosed, confer a commercial advantage on a person with whom the council is conducting (or proposes to conduct) business

 

3.       That on balance it is considered that receipt and discussion of the matter in open Council would be contrary to the public interest, as disclosure of the confidential information could compromise the commercial position of the facility and the Council’s position in potential future tender processes.

 

 

Attachments:

 

·       CONFIDENTIAL Draft Fees and Charges #1194222 [3 pages].......................................... Annexure 43(a)

·       CONFIDENTIAL Income and Operating Estimates #1194228 [2 pages]............................ Annexure 43(b)

·       CONFIDENTIAL BRSCC Multi Purpose Facility Plan #1194315 [1 page]........................... Annexure 43(c)

 

 



[1] The cost of obtaining approvals and community consultation was not included in the original budget, it is estimated that this cost approximately $5,000 excluding staff costs (based on Review of Environmental Factors $4,500, Land and Property Management Authority Licence $130).

 

[2] Estimated as final invoice for report not yet received

[3] 12-16m3/m scraped over 1.3km = assume 12m3 x 1300m = 15,600m3

$63,050 / 15,600m3 = $4.04/m3 or

assume 16m3 x 1300m = 20,800 m3

$63,050 / 20,800m3 = $3.03/m3

 

[4] This cost may reduce each episode if approvals span a program of several beach scraping episodes