Agenda of Ordinary Meeting - 22 November 2018

BYRON SHIRE COUNCIL

Notices of Motion and Rescission 9.2

Notice of Rescission Motion No. 9.2 Tyagarah Clothes Optional Declaration - Results of the enhanced stakeholder safety initiatives of Res 17-499 and Res 17-715

File No: I2018/1992

We move that Council rescind Resolution No. 18-698 from its Ordinary meeting held on 18 October 2018 which reads as follows:

1. Acknowledge the improvement in beach safety at Tyagarah and thank the Safe Beaches Committee, NSW Police and stakeholders.

2. Confirm the current status and area for the clothes optional beach at Tyagarah with 6 monthly reporting to Council on progress.

3. Council establish a Safe Byron Beaches Committee meeting quarterly to cover all beaches and adjacent environs in Byron Shire.

4. The Safe Byron Beaches Committee be established with a constitution and paramount objective to identify and promote cooperative actions to ensure a safe environment for all beach users in Byron Shire.

5. The Safe Byron Beaches Committee membership include representatives from Council, NPWS, Police, naturists and residents and be chaired by a councillor nominated by Council.

6. The nominated Chairperson of the Safe Byron Beaches Committee with the support of Council, consult with stakeholder groups to draft a constitution for endorsement at the November meeting of Council that includes the following key actions

· Liaise with NSW Police and other agencies

· Develop rapid response and reporting protocols

· Implement strategies to support beach user groups and individuals

· Focus resources on identified problem locations (eg Grays Lane)

· Consider how digital technologies (eg cameras) can be deployed

· Draft a positive statement of community values

· Provide advice to Council

· Other measures that achieve the paramount objective

7. That Council allocate a budget of $10,000, subject to confirmation of funding being available as part of the 30 September 2018 Quarter Budget Review to be submitted to Council at the 22 November 2018 Ordinary Meeting for the installation of up to 20 battery operated cameras recording vehicle registration and personal behaviour in the reserve.

If successful we intend to move:

1. That Council revoke its ‘Clothes Optional Declaration’ within the Tyagarah Reserve.

2. That Council establish a 12 month trial ‘Clothes Optional Declaration’ for the stretch of beach from ‘The Wreck’ north to the walking track south of Beaumonts Beach House.

Signed: Cr Paul Spooner

Cr Jan Hackett

Cr Simon Richardson

Comments from Director Infrastructure Services:

To enable the establishment of a new Clothes Optional designated area, Council should consider an allocated budget of $10,000 for the installation and establishment of appropriate signage either through the September quarterly budget review process or via resolution from this Rescission Motion. An appropriate source of funding could be allocated from the Crown Reserve for R82000.

Resolution 18-698 has not been enacted save that, in respect of 18-698/7, a letter has been forwarded to National Parks and Wildlife Service enquiring as to whether NP&WS would give consent to the placement of optical surveillance devices (overt fixed cameras) in the Grays Lane carpark together with the placement of signage applicable thereto.

It was felt prudent to forward this letter so that Councillors, and therefore the debate, can be fully informed when the rescission motion is before Council.

Statutory and Policy Implications

Clothes optional bathing under the Local Government Act 1993

The starting point is section 633 of the Act.

Section 633(1) makes it an offence for a person in (without limitation): a public bathing place; a river or tidal water; the sea adjacent to a local government area; or a public place adjacent to those areas; to fail to comply with a notice erected by Council.

Section 633(2) is directly relevant to "clothes optional bathing”:

633(2) A person who is in public view in the nude in any place (other than a designated beach) referred to in subsection (1) is guilty of an offence unless a notice erected by the council at the place allows the use of the place (or part of the place) for the purposes of nude bathing.

Maximum penalty: 10 penalty units.

Other sub-sections of section 633 are relevant:

· Council may erect a notice on any land under the control of Council - or on any other land with the consent of the person who owns or controls the land.

· The terms of any notice under section 633 may relate to the conduct and costume of the bathers - and the use of a place for the purposes of nude bathing.

It is important to recognise the scope of Council’s power under section 633. Council does not actually have a specific power to declare a beach as a “nude beach”. What Council does have is a power to otherwise excuse what would be an offence (“nudity”) under s.633(2). The excuse arises as a result of a notice which is erected by the Council.

To state it clearly: any person who is in the nude on a beach in New South Wales commits an offence unless the beach is a designated beach (Lady Bay (Lady Jane) Beach, Cobblers Beach, Obelisk Beach, Werrong Beach and Samurai Beach), or there is a notice erected by Council which allows the place to be used for the purposes of nude bathing.

That is the extent of Council's power under this section.

The power granted under section 633 allows Council to determine where nude bathing can be permitted in the Shire. Simply put, if Council does not erect a notice, then nude bathing is impermissible.

Of course, once Council erects a notice pursuant to s.633(2), then nude bathing is permissible: the person no longer commits an offence by virtue of the sign erected by Council.

To make the point again: the Act does not contain, in terms, a power for Council to declare a beach a "nude beach". The Act contains a power for a Council to erect a sign which provides a defence to the offence of public nudity.

s.633 is a power to erect a sign on land

Once the power under s.633 is understood in this way, then issues associated with who actually owns or controls the public bathing area can be properly understood.

· If Council owns the land on which the notice is to be erected, then Council can proceed to a erect the notice and, declare the area to be a “clothes optional” beach.

· However if the Council does not own the land on which the notice is to be erected, the consent of the landowner is required before the sign can be erected and the area is declared a "clothes optional" beach.

The power to erect the sign is not a power to regulate all behaviour at the place

By erecting signage permitting nude bathing, Council does not become the "police" for all behaviour at a "nude beach”. The extent of Council’s powers are set out in s.633. Other regulatory authorities, including the NSW Police Force, are not precluded or prevented from taking enforcement action simply because Council has erected a sign pursuant to s.633.

Land ownership in the area proposed should Resolution 18-698 be rescinded

As previously advised, in order for Council to erect a notice it must be on land vested in or under the control of Council or on other land with the consent of the person who owns or controls the land.

The area defined as the beach access track north of the Beaumounts Beach House to the shipwreck is shown below.

Crown Land Manager:

Land from Kendall Street south is Crown Land managed by Council as the Crown Land Manager for R82000 for the purpose of public recreation. Being the Crown Land Manager for this land, Council must manage this land as community land, must have a plan of management for the land and may resolve that part of R82000 is designated for nude bathing if permitted by the plan of management.

Prior to adopting that plan of management, s44 LGA provides that the nature and use of the land must not be changed.

Use of community land prior to adoption of a Plan of Management (‘PoM’) is set out in s44 LGA.

s44 LGA is found in Div 2 of Part 2 Public Land, Div 2 is titled Use and Management of community land and provides

Pending the adoption of a plan of management for community land, the nature and use of the land must not be changed.

The OLG Practice Note Public Land Management revised May 2000 provides:

The relocation of the clothes optional beach onto part of Reserve R82000 will not impact on:

i. the current use of the land because the land will remain open for public recreation unchanged, and

ii. the current nature of the land will not change because the use does not require the granting of development consent or a lease or licence.

Signage may be erected on the land by Council in accordance with the LGA.

Licensee of Crown Land:

North from Kendall Street to the beach access point past Beaumounts Beach House is Crown Land held by Council under a s34A licence for Business Purposes. Nude bathing would not be included under the s34A licence unless undertaken for commercial purposes.

The erecting of signage may not be permitted by the licence under:

· cl 21(b) that states the licence holder will not use the Premises or allow them to be used for any purpose other than the purpose specified in Column 2 of Item 4 in Schedule 1 being the purpose for which premises must be used is Business Purposes (Low Impact Commercial Recreational Activities). Signage permitting nude bathing is not a business purpose.

BYRON SHIRE COUNCIL

Staff Reports - General Manager 13.2

Report No. 13.2 Lilly Pilly Community Pre-School Inc - Lease

Directorate: General Manager

Report Author: Paula Telford, Leasing and Licensing Coordinator

File No: I2018/1949

Theme: Corporate Management

Corporate Services

Summary:

Council resolved (18-640) to authorise the General Manager to negotiate with the Lilly Pilly Community Pre-School, (‘the Pre-School’) a new lease with following terms and conditions:

a) an initial term of five (5) years with three additional options of five (5) years to renew;

b) the lessor provide subsidised rent to the value of $40,190 (Calculated on the basis of 6% of the lands Unimproved Capital Value $40,680 less $490 being the value of minimum Crown rent) and adjusted each year;

c) the lessee pay annual rent of $490 (excluding GST) being minimum Crown rent, adjusted for each year of the lease;

d) the lessor provide full (100%) subsidies general land rates value for each year of the lease;

e) the Lessee pay all other outgoings;

f) the Lessee repair or replace all non-structural defects identified in a building audit obtained prior to commencement of the lease, and subsequent obtained prior to commencement of each additional option of the lease.

Negotiations with the Pre-School have completed and a resolution from Council is now required to authorise the granting of the proposed lease.

RECOMMENDATION:

1. That Council delegate to the General Manager, the authority to authorise the holding- over by the Lilly Pilly Community Pre-School Inc under the existing lease terms to permit occupation of Lot 70 DP 851902 after 30 November 2018 and until a new lease is executed.

2. That Council grant a five (5) year lease with three five (5) year options to renew, for the purpose of early childhood education and care to the Lilly Pilly Community Pre-School Inc over the whole of Lot 70 DP 851902, 96 Kingsford Drive Brunswick Heads NSW 2483.

3. That Council authorise the publication of the proposed grant of a five (5) year lease with three five (5) year options to renew for the purpose of early childhood education and care to the Lilly Pilly Community Pre-School Inc for a period of 28 days seeking public comment.

4. That in the event of no comments objecting to the grant of the lease are received, that Council delegate to the General Manager the authority to consider all submissions to enter into the lease referred to in 2 above with the following minimum conditions:

a) term of five (5) years with three five (5) year options to renew;

b) annual lease rent to commence at $490 (inclusive of GST);

c) annual rent to be increased to annual the value of minimum Crown rent for the same year;

d) all lease preparation and registration costs to be met by the Lessee;

e) all maintenance to be carried out by the Lessee at the Lessee’s cost;

f) Council subsidise annual rent to value of $40,190 being the difference between the market rent $40,680 and the subsidised rent of $490 payable by the Lessee on commencement of the lease by a section 356 of the LGA donation of Council;

g) Council subsidise annual general land rates payable on the unimproved capital value of the land being $678,000 in the 2018-2019 financial year.

5. That in the event that objecting comments are received then Council make an application for the consent from the NSW Minister for Local Government for the lease, referred to in 2 above, to be granted.

Report

Council resolved (18-640) to authorise the General Manager to negotiate with the Lilly Pilly Community Pre-School, (Pre-School) a new lease with following terms and conditions:

a) an initial term of five (5) years with three additional options of five (5) years to renew;

c) the lessee pay annual rent of $490 (excluding GST) being minimum Crown rent, adjusted for each year of the lease;

d) the lessor provide full (100%) subsidies general land rates value for each year of the lease;

e) the Lessee pay all other outgoings;

f) the Lessee repair or replace all non-structural defects identified in a building audits obtained prior to commencement of the lease, and subsequent obtained prior to commencement of each additional option of the lease.

Negotiations with the Pre-School have completed and a resolution from Council is now required to authorise the granting of the proposed lease.

Background:

The Pre-School holds a current five (5) year lease with Council that terminates on 30 November 2018. The Pre-School request a new twenty year lease.

The proposed new lease is over the whole of Lot 70 DP 851902, 96 Kingsford Drive Brunswick Heads being Council owned land and classified as community land for general community use.

The adopted Generic Plan of Management (the Plan) over the land, permits Council to lease the land for a term not greater than 21 years for purposes consistent with the core objectives of the Plan. The proposed grant of a five (5) year lease with three options of five (5) years to renew, for the purpose of early childhood education and care, is consistent the Plan and its core objectives.

Direct negotiation:

In accordance with s46A(3) of the Local Government Act 1993 (NSW), Council is exempted from running a tender process to let a proposed lease for greater than five years to the Pre-School because the Pre-school is a registered charity (93 549 848 039) and approved children’s care provider (PR-00005056). A long-term lease will provide the Pre-School with the security to apply for applicable grant funding.

Terms of proposed Lease:

The proposed lease will be for a term of five (5) years commencing 1 December 2018 to 30 November 2023. The lease will provide the option of three additional five (5) year options to renew.

A regime of scheduled building audits throughout the term of the lease will ensure ongoing maintenance to the Council asset. Terms of the Lease will place an obligation on the Lessee to repair or replace all non-structural building defects identified in each building audit report.

Public notification of proposed Lease:

LGA section 47 (set out below) provides that if a council proposes to grant a lease, licence or other estate in respect of community land for a period (including any period for which the lease, licence or other estate could be renewed by the exercise of an option) exceeding 5 years, it must give public notice of the proposal (including on the council’s website), and exhibit notice of the proposal on the land to which the proposal relates.

Before granting the lease, licence or other estate, the council must consider all submissions duly made to it. The council must not grant the lease, licence or other estate except with the Minister’s consent, if a person makes a submission by way of objection to the proposal.

As a result of the public notice, this report seeks Council authority to authorise the Pre-School to remain in occupation of the premises after 30 November 2018 under holding-over provisions, (clause 29 of the current lease) until the new proposed lease is completed.

Subsidies:

Council’s Policy 3.44 Children’s Services Policy provides that Council will provide community land at nominal cost to the organisations including the Pre-School as a result Council will need to:

· subsidise $40,190 being the difference between the market rent calculated at 6% of the lands Unimproved Capital Value (UCV) being $40,680 and the rent payable by the Pre-School of $490 (exclusive of GST) being the value of minimum Crown Rent on commencement of the lease; and

· subsidise the annual value of general land rates in accordance with Council’s Policy 12/008 Section 356 Donations for not for profit organisations. The Pre-School to pay all other outgoings except for general rates charges.

Subsidy will be by way of a section 356 of the LGA, donation of Council.

Financial Implications

This report recommends that Council subsidise by way of a section 356 of the LGA donation:

· annual rent to the value of $40,190 being the difference between the market rent $40,680 and the rent $490 payable by the Pre-School; and

· annual general land rates for each year of the lease. The annual general rent for the 2018-19 financial year based on a UCV of $678,000.

That the Pre-School pay the lease preparation costs of $517 as set by Council’s 2018-19 Fees and Charges and the full cost of registering the lease with the NSW Land Registry Services as well as all maintenance to be carried out by the Pre-School at its cost.

Statutory and Policy Compliance Implications

Local Government Act

s46A Means of granting leases, licences and other estates

(1) A plan of management is to specify, in relation to the community land to which it applies, any purposes for which a lease, licence or other estate may be granted only by tender in accordance with Division 1 of Part 3.

(2) Nothing in this section precludes a council from applying a tender process in respect of the grant of any particular lease, licence or estate.

(3) A lease or licence for a term exceeding 5 years may be granted only by tender in accordance with Division 1 of Part 3, unless it is granted to a non-profit organisation.

47 Leases, licences and other estates in respect of community land—terms greater than 5 years

(1) If a council proposes to grant a lease, licence or other estate in respect of community land for a period (including any period for which the lease, licence or other estate could be renewed by the exercise of an option) exceeding 5 years, it must:

(a) give public notice of the proposal (including on the council’s website), and

(b) exhibit notice of the proposal on the land to which the proposal relates, and

(c) give notice of the proposal to such persons as appear to it to own or occupy the land adjoining the community land, and

(d) give notice of the proposal to any other person, appearing to the council to be the owner or occupier of land in the vicinity of the community land, if in the opinion of the council the land the subject of the proposal is likely to form the primary focus of the person’s enjoyment of community land.

(2) A notice of the proposal must include:

• information sufficient to identify the community land concerned

• the purpose for which the land will be used under the proposed lease, licence or other estate

• the term of the proposed lease, licence or other estate (including particulars of any options for renewal)

• the name of the person to whom it is proposed to grant the lease, licence or other estate (if known)

• a statement that submissions in writing may be made to the council concerning the proposal within a period, not less than 28 days, specified in the notice.

(3) Any person may make a submission in writing to the council during the period specified for the purpose in the notice.

(4) Before granting the lease, licence or other estate, the council must consider all submissions duly made to it.

(5) The council must not grant the lease, licence or other estate except with the Minister’s consent, if:

(a) a person makes a submission by way of objection to the proposal, or

(b) in the case of a lease or licence, the period (including any period for which the lease or licence could be renewed by the exercise of an option) of the lease or licence exceeds 21 years.

(6) If the council applies for the Minister’s consent, it must forward with its application:

• a copy of the plan of management for the land

• details of all objections received and a statement setting out, for each objection, the council’s decision and the reasons for its decision

• a statement setting out all the facts concerning the proposal to grant the lease, licence or other estate

• a copy of the public notice of the proposal

• a statement setting out the terms, conditions, restrictions and covenants proposed to be included in the lease, licence or other estate

• if the application relates to a lease or licence for a period (including any period for which the lease or licence could be renewed by the exercise of an option) exceeding 21 years, a statement outlining the special circumstances that justify the period of the lease or licence exceeding 21 years

• a statement setting out the manner in which and the extent to which the public interest would, in the council’s opinion, be affected by the granting of the proposed lease, licence or other estate, including the manner in which and the extent to which the needs of the area with respect to community land would, in the council’s opinion, be adversely affected by the granting of the proposed lease, licence or other estate.

(7) On receipt of the application, the Minister must request the Director of Planning to furnish a report concerning the application within such period as the Minister specifies.

(8) After considering the application and any report of the Director of Planning, the Minister, if satisfied that:

(a) subsections (1), (2) and (6) have been complied with, and

(b) such consent would not contravene section 46, and

(c) in all the circumstances, it is desirable to grant consent,

may consent to the granting of a lease, licence or other estate in respect of the whole or part of the land to which the application relates, subject to such terms and conditions as the Minister specifies.

(8AA) The Minister may consent to a lease or licence referred to in subsection (5) (b) only if the

Minister is satisfied that there are special circumstances that justify the period of the lease or licence exceeding 21 years.

(8A) On request by any person, the Minister must provide that person, within 14 days of that request, with a written statement of reasons for consenting to, or refusing to consent to, the granting of a lease, licence or other estate in accordance with subsection (8).

(9) The Minister’s consent is conclusive evidence that the council has complied with subsections (1), (2) and (6).

(10) For the purposes of this section, any provision made by a lease or licence, or by an instrument granting any other estate, in respect of community land, according to which the council:

(a) would suffer a disadvantage or penalty if the same or a similar lease, licence or estate were not to be granted, for a further term, after the expiry of the current lease, licence or other estate, or

(b) would enjoy an advantage or benefit if the same or a similar lease, licence or estate were to be so granted, is taken to confer an option for renewal for a term equal to the further term.

BYRON SHIRE COUNCIL

Staff Reports - General Manager 13.3

Report No. 13.3 Crown Lands Transition

Directorate: General Manager

Report Author: Shannon McKelvey, Executive Officer

Claire McGarry, Place Manager - Byron Bay

File No: I2018/2123

Theme: General Manager

Organisation Development

Summary:

The Crown Lands Management Act commenced from 1 July 2018 and changes the way that some crown reserves will be managed in future. All crown reserves will stay public land, with some managed under the Crown Lands Management Act and others managed under the Local Government Act.

There will be no practical impacts for the reserves that will continue to be managed by Council under the Crown Lands Management Act. For reserves managed by Council as ‘community land’ under the Local Government Act, there will now need to be Plans of Management in place to guide their future use and management. Council needs to notify the Minister and work with the Department to determine the initial classification and categorisation for reserves that will be managed under the Local Government Act.

There is a transition period of 3 years for councils to put Plans of Management in place for these reserves. The Crown Lands transition project is being coordinated from the General Manager’s Office and will involve staff and resources from many service areas of Council, for example open spaces, works, utilities, community services, legal services, place planning and media and communications.

While the Act commenced in July this year, the supporting guidelines, training and reserve-specific information have been being progressively rolled out by Department of Industry Crown Land (DOI-CL) and Office of Local Government. Council now has sufficient information to get parts of the transition underway.

This report relates to some reserves which Council is involved in managing. As the transition progresses over the next 3 years, there will be further reports on other reserves. For now, Council has to start the transition process and the recommendations in this report cover as many reserves as possible at this time.

RECOMMENDATION:

That Council resolve to apply to the Minister administering the Crown Lands Management Act for:

a) Initial classifications and categoristions set out in Attachments 1 & 2 (E2018/90298 and E2018/90299).

b) A one-off vesting application for the Sandhills Estate (part reserve number 755695/part Lot 457 in DP 1087879).

Attachments:

1 Crown Land Manager Reserves, E2018/90298 ⇨

2 Devolved Reserves, E2018/90299 ⇨

Report

The Crown Lands Management Act commenced on 1 July 2018. According to the Department of Industry - Crown Lands (DOI-CL) it will reduce red tape and duplication, recognise and support Aboriginal involvement in the management of Crown Land and support greater community involvement in local decisions made about Crown Land.

This report does not relate to crown reserves where Council has no current role in management.

Also it relates only to those reserves in the Shire that DOI-CL have identified so far as being devolved to Council. There are many other crown reserves in the Shire that DOI-CL are yet to make a decision on and they will be the subject of future consideration. No timeframe has been provided by DOI-CL for when that future consideration will occur as part of what they are calling their ‘land negotiation program’.

At this stage, staff have identified only one reserve where the delay in that future consideration will negatively impact current projects and that is the Sandhills Reserve – see more information below.

DOI-CL have created a new public and searchable on-line Portal to provide information on some crown reserves https://www.industry.nsw.gov.au/lands/reserves/portal . It is created from a live database which means that the published information is updated regularly.

DOI-CL advise they plan to develop and improve the Portal and eventually have it cover all reserves but for now the Portal only shows the reserves that have been devolved to Council or which Council is the Crown Land Manager (formerly Reserve Trust Manager) for.

There are now 2 types of crown land that will managed by Council:

1. Reserves that have been ‘devolved’ to Council – These are reserves that will continue to be overseen by Crown Lands under Crown Lands Management Act but operationally they are to be managed by Council. There will be no requirements for a Plan of Management for these reserves. In practice, nothing much will change with these reserves, however, the process has identified reserves which were not previously known to Council as this is the first time they have been shown by DOI-CL in their mapping.

2. Reserves where Council is now Crown Lands Manager – These are the reserves Council has been Reserve Trust Manager of. These reserves will now be overseen and operationally managed by Council under the Local Government Act. For reserves that are classified as ‘Community Land’ under the Local Government Act, a Plan of Management will now be need to be in place by 31/7/2021.

There will continue to be some significant differences between Council-owned land and Crown reserves managed under the Local Government Act public land management system including that:

1. Native Title responsibilities will continue with crown reserves;

2. Additional statutory requirements will apply to crown reserves under the Crown Lands Management Act;

3. The Minister has additional powers in relation to crown reserves, for example Minister can make classifications subject to conditions and Department has an approval role for plans of management.

4. The Minister retains control over crown reserves, including the power to dispose of a reserve or change the status of reserves or of management of reserves.

Council is now required to notify and apply to the Minister for initial classification and categorisation of reserves under the Local Government Act. A Council resolution is required to make the application to the Minister (as it is a non-delegable function under s377(1)(s) of the Local Government Act).

The Department have issued guidelines for the classification and categorisation of reserves – see https://www.olg.nsw.gov.au/content/council-crown-land-managers-resources.

The Guidelines point out that some reserves will be manifestly inconsistent with a community land classification including reserves that:

· may not need to be made available to the public for use for any purpose for which community land may be used, either by general public or specific sections of the public;

· do not satisfy the guidelines under the Local Government (General) Regulations;

· cemeteries

· emergency services sites

· reserves needed for infrastructure eg quarries, sewerage works, coastal infrastructure, sanitary purposes, reservoirs and water infrastructure.

The guidelines confirm that where a council recommends an operational classification, the onus is on them to identify and satisfy the Minister that certain land does not fall within any of the categories for community land under the Local Government Act or could not continue to be used and dealt with as it currently is if it were classified as community land.

For reserves classified as community land, they require categorisation as per the Local Government Act and Regulations. Appendix B to the Guideline – Initial categorisation of Crown Land managed by council Crown land managers, provides a comprehensive list of the ‘guidance category’ for each of the purposes reserves may have been dedicated for. If the guidance category is inconsistent with the existing use of a reserve the onus will be on Council to provide evidence of the inconsistency.

The process for categorising each reserve classified as Community Land set out in the Guideline is:

During this transition the initial decisions on classification and categorisation are ultimately matters for the Minister. After that, the usual processes set out in the Local Government Act can be followed if community wish to change the classification/categorisation, however, Crown Lands approval will still be required in many instances.

Once community land has been categorised, there will be different processes for preparation of Plans of Management depending on the categorisation. It is not possible to start to plan the process for preparing all the necessary Plans of Management until the Minister’s decisions on categorisation are known. This is because some categorisations will trigger the need for site-specific Plans of Management but some reserves with the same categorisations may be able to have generic Plans of Management. Once the Minister’s categorisation decisions are known, a further workshops with Councillors on resourcing preparation of the Plans of Management will be possible.

There is a large body of work to get the notifications/applications and supporting information prepared. This will have to be resourced from within existing staff resources. Also, DOI-CL will be processing notifications/applications from each council which will be a significant workload for them. This means that it is most likely that it will take quite some time before Council receives the final initial classifications and categorisations.

In relation to Sandhills (as shown below), it is part of Reserve 755695.

Reserve 755695 includes more than 50 different parcels of land across the Shire used for varied purposes so the whole reserve had been deferred for future consideration. [NB the Byron Youth Activity Centre (Byron YAC) has its own reserve, Reserve Number 1026908 and the recommendation regarding Sandhills does not refer to the Byron YAC reserve.]

Consistent with Res 18-542 Council requested urgent consideration of the vesting of this land in Council. Council has received confirmation from The Honourable Paul Toole MP, Minister for Lands and Forestry, via The Honourable Ben Franklin, Parliamentary Secretary for Renewable Energy and Northern NSW, that:

- The process can be by way a one-off vesting application for Sandhills Estate or, if that is unsuccessful, by way of Compulsory Acquisition which would involve Council paying compensation (which would be beyond Council’s capacity).

- The Department is interested in working with Council to ensure that the ongoing future use of the site brings optimal public benefit.

A cross-directorate team from the General Manager’s office, Open Spaces, Community Services and Utilities has commenced work on the application in accordance with Res 18-542 and are working with DOI-CL staff. The application has to be supported by a formal resolution authorising its making (as this is a non-delegable function).

Vesting would result in ownership of the crown land transferring to Council for no money. However it is important to note that vesting:

· Can be conditional, ie covenants, spatial limits and restrictions can be imposed on the vesting notice. For example, the Byron Library site was vested in Council some years ago and it was conditional upon a restriction being placed on the title to the land requiring use a library for a designated period.

· Does not displace dedications and reservations or Native Title unless/until the land becomes “excluded land” and then only if the vesting notice is unconditional. Council will need to engage with and involve the Arkawal / Byron Bay Bundjalung and Tweed Byron Area Land Council consistent with the Indigenous Land Use Agreement that includes reference to Sandhills Estate and the NSW Aboriginal Land Council as claimants under the Aboriginal Land Rights Act 1983 (NSW). Some preliminary discussions have been held but will need to continue throughout the process.

· Will result in the land being community land unless the vesting notice expressly states it is vested as operational land.

To be eligible for vesting, the land must:

a. meet one or more of the ‘Local Land Criteria’:

- provides public good predominantly for residents in the shire or in adjacent shires

- consistency of use with LEP/planning provisions

- consistency of use with functions of a council under LG Act

- consistency of management of the land as a community asset by Council.

b. be “suitable for local use” for example the application could be supported by proof of:

- assets/infrastructure on the site supporting that local use

- investment by Council into the site for that local use

- consistency of use with current zoning

- timeframes for achieving local use

- Council funding details;

- that the future use will be actually activated and brought to completion after vesting.

c. not be ‘state significant’.

To make a one-off vesting application Council must also demonstrate that there is an ‘exceptional local need’ which is a matter that DOI-CL have absolute discretion to determine. The examples provided by DOI-CL of where exceptional local need may be found include:

· That ownership would provide Council with significantly increased ability to manage the land to realise greater community benefit for public recreation and multi-use than currently exists.

· Council intends/needs to make a significant financial investment and where security of ownership would justify the investment.

· Council has already made significant investment infrastructure to allow for public good and are seeking ownership of land for continued management to provide security for future investments and community benefit.

· Timing is critical and it is not possible to delay the vesting, as delay would result in continued loss of community benefit and reputational risk to Council or State Government/

· The public interest/good can be demonstrated to “far outweigh” any potential loss of state revenue by vesting high-value Crown land and assets in Council.

Preparation of the application is being resourced from within existing resources. The application will need to be comprehensive as there will only be one opportunity to make it and it needs to be supported with engagement information, so it will take some time to prepare.

Financial Implications

DOI-CL will provide the base amount of $30,000 to Council to assist with preparation of Plans of Management. This amount is insufficient to cover the costs of Plans let alone the costs of the preparatory work in notifying/applying to the Minister for classifications and categorisations, the vesting application or the future work that will arise once the program for discussing the balance of the reserves starts.

The work involved in the transition will have to be resourced from within existing staff resources which means that other projects, like reviewing plans of management for some Council-owned land may need to be delayed.

Statutory and Policy Compliance Implications

The Crown Lands Management Act imposes statutory non-discretionary obligations on Council in relation to the management and governance of certain Crown Lands. The recommendation and progressing this project are consistent with those obligations.

BYRON SHIRE COUNCIL

Staff Reports - Corporate and Community Services 13.7

Report No. 13.7 Budget Review 1 July 2018 to 30 September 2018

Directorate: Corporate and Community Services

Report Author: James Brickley, Manager Finance

File No: I2018/1995

Theme: Corporate Management

Financial Services

Summary:

This report is prepared to comply with Regulation 203 of the Local Government (General) Regulation 2005 and to inform Council and the Community of Council’s estimated financial position for the 2017/2018 financial year, reviewed as at 30 September 2018.

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 Attachment 1 and 2 for Council’s consideration and authorisation.

Attachment 3 contains the Integrated Planning and Reporting Framework (IP&R) Quarterly Budget Review Statement (QBRS) as outlined by the Office of Local Government in circular 10-32.

RECOMMENDATION:

1. That Council authorise the itemised budget variations as shown in Attachment 2 (#E2018/89897) which includes the following results in the 30 September 2018 Quarterly Review of the 2018/2019 Budget:

a) General Fund – $37,200 increase to the Estimated Unrestricted Cash Result

b) General Fund - $952,700 increase in reserves

c) Water Fund - $163,900 increase in reserves

d) Sewerage Fund - $208,200 increase in reserves

2. That Council adopt the revised General Fund Estimated Unrestricted Cash Result of $1,145,200 for the 2018/2019 financial year as at 30 September 2018.

Attachments:

1 Budget Variations for General, Water and Sewerage Funds, E2018/89888 ⇨

2 Itemised Listing of Budget Variations for General, Water and Sewerage Funds, E2018/89897 ⇨

3 Integrated Planning and Reporting Framework (IP&R) required Quarterly Review Statement, E2018/89903 ⇨

Report

Council adopted the 2018/2019 budget on 28 June 2018 via Resolution 18-429. It also considered and adopted the budget carryovers from the 2017/2018 financial year, to be incorporated into the 2018/2019 budget at its Ordinary Meeting held on 23 August 2018 via Resolution 18-522. Since that date, Council has reviewed the budget taking into consideration the 2017/2018 Financial Statement results and progress through the first quarter of the 2018/2019 financial year. This report considers the September 2018 Quarter Budget Review.

The details of the budget review for the Consolidated, General, Water and Sewer Funds are included in Attachment 1, with an itemised listing in Attachment 2. This aims to show the consolidated budget position of Council, as well as a breakdown by Fund and Principal Activity. The document in Attachment 1 is also effectively a publication outlining a review of the budget and is intended to provide Councillors with more detailed information to assist with decision making regarding Council’s finances.

Contained in the document at Attachment 1 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 Attachment 1 are presented (from left to right) by showing the original budget as adopted by Council on 28 June 2018 plus the adopted carryover budgets from 2017/2018 followed by the resolutions between July and September and the revote (or adjustment for this review) and then the revised position projected for 30 June 2019 as at 30 September 2018.

On the far right of the Principal Activity, 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 Attachment 1 which provides an explanation of the variation.

There is also information detailing restricted assets (reserves) to show Council estimated balances as at 30 June 2019 for all Council’s reserves.

A summary of Capital Works is also included by Fund and Principal Activity.

Office of Local Government Budget Review Guidelines:-

The Office 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 a Quarterly Budget Review Statement (refer Attachment 3) 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 Council’s to address.

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 (e.g 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 Attachment 3:-

Income and Expenditure Budget Review Statement by Type – This shows Councils income and Expenditure by type. This has been split by Fund. Adjustments are shown, looking from left to right. These adjustments are commented on through the last 11 pages of Attachment 1.

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 first quarterly review for the reporting period, the Statement may not necessarily indicate the total progress achieved on the delivery of the capital works program.

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 30 September 2019 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 (KPI’s) – At this stage, the KPI’s within 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 July to September 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 2018/2019 financial year projected to 30 June 2019 but revised as at 30 September 2018.

2018/2019 Budget Review Statement as at 30 September 2018	Original Estimate (Including Carryovers) 1/7/2018	Adjustments to 30 Sept 2018 including Resolutions*	Proposed 30 Sept 2018 Review Revotes	Revised Estimate 30/6/2019 at 30/9/2018
Operating Revenue	81,580,000	0	142,700	81,722,700
Operating Expenditure	86,541,800	264,500	1,009,500	87,815,800
Operating Result – Surplus/Deficit	(4,961,800)	(264,500)	(866,800)	(6,093,100)
Add: Capital Revenue	25,396,200	0	(117,600)	(25,278,600)
Change in Net Assets	20,434,400	(264,500)	(984,400)	19,185,500
Add: Non Cash Expenses	13,678,900	0	925,700	14,604,600
Add: Non-Operating Funds Employed	3,899,000	0	1,300,000	5,199,000
Subtract: Funds Deployed for Non-Operating Purposes	(63,028,000)	(3,007,700)	120,700	(65,915,000)
Cash Surplus/(Deficit)	(25,015,700)	(3,272,200)	1,362,000	(26,925,900)
Restricted Funds – Increase / (Decrease)	(25,031,500)	(3,219,200)	1,324,800	(26,925,900)
Forecast Result for the Year – Surplus/(Deficit) – Unrestricted Cash Result	15,800	(53,000)	37,200	0

GENERAL FUND

In terms of the General Fund projected Unrestricted Cash Result the following table provides a reconciliation of the estimated position as at 30 September 2018:

Opening Balance – 1 July 2018	$1,145,200
Plus original budget movement and carryovers	15,800
Council Resolutions July – September Quarter	(53,000)
Recommendations within this Review – increase/(decrease)	37,200
Forecast Unrestricted Cash Result – Surplus/(Deficit) – 30 June 2019	0
Estimated Unrestricted Cash Result Closing Balance – 30 June 2019	$1,145,200

The General Fund financial position overall has increased by $37,200 as a result of this budget review, bringing the forecast cash result for the year back to a balanced result. The proposed budget changes are detailed in Attachment 1 and summarised further in this report below.

Council Resolutions

Council has passed the following resolutions within the Budget Review that required funding and have been included::

· Resolution 18-628 part 3 for the Multi Use Byron Shire Rail Corridor:

“That Council increase the project budget for the Multi Use of the Byron Rail Corridor by an additional $50,000 funded from the unrestricted cash balance”.

· Resolution 18-630 part 2 for the Support for Drought Relief:

“That Council allocate a budget of $3,000 in the 2018/19 financial year funded from the current 2018/19 budget surplus of $15,800”.

Budget Adjustments

The budget adjustments identified in Attachments 1 and 2 for the General Fund have been summarised by Budget Directorate in the following table:

Budget Directorate	Revenue Increase/ (Decrease) $	Expenditure Increase/ (Decrease) $	Accumulated Surplus (Working Funds) Increase/ (Decrease) $
General Manager	125,000	125,000	0
Corporate & Community Services	145,900	117,400	28,500
Infrastructure Services	1,387,600	1,367,900	19,700
Sustainable Environment & Economy	(62,200)	(51,200)	(11,000)
Total Budget Movements	1,596,300	1,559,100	37,200

Budget Adjustment Comments

Within each of the Budget Directorates of the General Fund, are a series of budget adjustments identified in detail at Attachment 1 and 2. More detailed notes on these are provided in Attachment 1 but in summary the major additional items included are summarised below by Directorate and are included in the overall budget adjustments table above:

General Manager

· In the General Manager’s program the budget Legal Services costs have been moved from the Corporate Services program as per Council’s organisation structure. This will have an impact on the way support service costs are distributed across all budget programs. In addition, income and expenditure budgets are provided for the implementation of the new Crown Lands Act 2016 ($30,000).

· In the People & Culture program, it is proposed to increase income and expenditure by $47,000 for the annual WHS incentive payment and restrict the funds in a new reserve.

Corporate and Community Services

· In the General Purpose Revenues Program an additional $104,900 in revenue has been recognised as the allocation for Council’s 2018/2019 Financial Assistance Grant is more than originally budgeted.

· In the Information Service program it is proposed to increase income and expenditure by $20,000 to evaluate a new WHS risk management/safety management system.

· In the Governance Services Program the Legal Services budgets have been moved to the General Manager’s program.

· In the Sandhills program, it is proposed to increase the budget by $44,000 for the upgrade of the centre. This has no net effect on the budget result as all movements are taken up through the Children’s Service reserve.

· In the Public Libraries program, it is proposed to increase the budget for the Brunswick Heads Library Upgrade by $85,000, funded from developer contributions to enable Council to apply for a grant to complete the project.

Infrastructure Services

· In the Projects & Commercial Development program, it is proposed to increase capital income due to the sale of land at Station Street Mullumbimby for $1,300,000. This can be transferred to the Property Development reserve ($1,102,100) and the property Reserve ($197,900).

· In the Local Roads and Drainage program, there are a number of adjustments outlined under Note 16 in the Budget Variations explanations section of Attachment 1. Further disclosure is included in the third page of Attachment 2 under the budget program heading Local Roads and Drainage.

· In the Roads and Maritime Services program (RMS) it is proposed to increase the budget by $176,200 for Broken Head Road to reflect the revised cost of the project.

· In the Open Space and Recreation program, there are a number of adjustments outlined under Note 18 in the Budget Variations explanations section of Attachment 1. Further disclosure is included in the fourth page of Attachment 2 under the budget program heading Open Space & Recreation.

· In the Waste & Recycling program it is proposed to purchase a loader for the Waste & Recycling Centre ($130,000) and to continue with the Waste Management Strategy ($100,000). These are funded through the Domestic Waste Management and Waste Management reserves.

· In the Cavanbah Centre program, it is proposed to increase expenditure by $21,000 for additional marketing and $10,000 for DA Activation.

· In the Facilities Management program it is proposed to increase the budget for the Suffolk Park Hall upgrade by $51,900.

Sustainable Environment and Economy

· In the Development and Certification program, it is proposed to decrease income by $80,000 due to a decline in income received for DA Fees ($40,000) and Construction Certificates ($40,000). This is largely due to a decrease in the number of Development Applications received and the market share for Construction Certificates dropping with additional companies offering this service.

WATER FUND

After completion of the 2017/2018 Financial Statements the Water Fund as at 30 June 2018 has a capital works reserve of $6,923,500 and held $3,857,800 in section 64 developer contributions.

The estimated Water Fund reserve balances as at 30 June 2019, and forecast in this Quarter Budget Review, are derived as follows:

Capital Works Reserve

Opening Reserve Balance at 1 July 2018	$6,923,500
Plus original budget reserve movement	(2,627,400)
Less reserve funded carryovers from 2017/2018	(375,700)
Resolutions July - September Quarter – increase / (decrease)	0
September Quarterly Review Adjustments – increase / (decrease)	89,900
Forecast Reserve Movement for 2018/2019 – Increase / (Decrease)	(2,913,200)
Estimated Reserve Balance at 30 June 2019	$4,010,300

Section 64 Developer Contributions

Opening Reserve Balance at 1 July 2018	$3,857,800
Plus original budget reserve movement	(746,400)
Less reserve funded carryovers from 2017/2018	(503,800)
Resolutions July - September Quarter – increase / (decrease)	(430,000)
September Quarterly Review Adjustments – increase / (decrease)	74,000
Forecast Reserve Movement for 2018/2019 – Increase / (Decrease)	(1,606,200)
Estimated Reserve Balance at 30 June 2019	$2,251,600

Movements for Water Fund can be seen in Attachment 1 with a proposed estimated increase to reserves (including S64 Contributions) overall of $163,900 from the 30 September 2018 Quarter Budget Review.

SEWERAGE FUND

After completion of the 2017/2018 Financial Statements the Sewer Fund as at 30 June 2018 has a capital works reserve of $8,706,800 and plant reserve of $704,400. It also held $9,051,600 in section 64 developer contributions.

Capital Works Reserve

Opening Reserve Balance at 1 July 2018	$8,706,800
Plus original budget reserve movement	(3,480,800)
Less reserve funded carryovers from 2017/2018	(1,454,800)
Resolutions July - September Quarter – increase / (decrease)	(1,330,000)
September Quarterly Review Adjustments – increase / (decrease)	258,600
Forecast Reserve Movement for 2018/2019 – Increase / (Decrease)	(6,007,000)
Estimated Reserve Balance at 30 June 2019	$2,699,800

Plant Reserve

Opening Reserve Balance at 1 July 2018	$704,400
Plus original budget reserve movement	0
Less reserve funded carryovers from 2017/2018	0
Resolutions July - September Quarter – increase / (decrease)	0
September Quarterly Review Adjustments – increase / (decrease)	0
Forecast Reserve Movement for 2018/2019 – Increase / (Decrease)	0
Estimated Reserve Balance at 30 June 2019	$704,400

Section 64 Developer Contributions

Opening Reserve Balance at 1 July 2018	$9,051,600
Plus original budget reserve movement	(27,900)
Less reserve funded carryovers from 2017/2018	(1,018,700)
Resolutions July - September Quarter – increase / (decrease)	(1,020,000)
September Quarterly Review Adjustments – increase / (decrease)	(50,400)
Forecast Reserve Movement for 2018/2019 – Increase / (Decrease)	(2,117,000)
Estimated Reserve Balance at 30 June 2019	$6,934,600

Movements for the Sewerage Fund can be seen in Attachment 1 with a proposed estimated overall increase to reserves (including S64 Contributions) of $208,200 from the 30 September 2018 Quarter Budget Review.

Legal Expenses

One of the major financial concerns for Council over previous years has been legal expenses. Not only does this item represent a large expenditure item funded by general revenue, but can also be susceptible to large fluctuations.

The table that follows indicates the allocated budget and actual legal expenditure within Council on

a fund basis as at 30 September 2018.

Total Legal Income & Expenditure as at 30 September 2018

Program	2018/2019 Budget ($)	Actual ($)	Percentage To Revised Budget
Income
Legal Expenses Recovered	0	4,000	0%
Total Income	0	4,000	0%

Expenditure
General Legal Expenses	202,600	53,724	26.52%
Total Expenditure General Fund	202,600	53,724	26.52%

Note: The above table does not include costs incurred by Council in proceedings after 30 September 2018 or billed after this date. At the time of writing this report, Council has incurred an additional $66,391 of expenditure in October 2018 with a further commitment of $8,193.

Financial Implications

The 30 September 2018 Quarter Budget Review of the 2018/2019 Budget has improved the overall budget result by $37,200. This brings the movement against the unrestricted cash balance attributable to the General Fund back to a balanced result for the year, leaving the estimated unrestricted cash balance attributable to the General Fund at an estimated $1,145,200 at 30 June 2019. This is a good result for the first quarter, but going forward Council must be conscious of decisions that may affect the unrestricted cash balance when considering matters with financial implications especially where funding sources are not identified.

Statutory and Policy Compliance Implications

In accordance with Regulation 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 still satisfactory for the 2018/2019 financial year, having consideration of the original estimate of income and expenditure at the 30 September 2018 Quarter Budget Review.

This opinion is based on the estimated General Fund Unrestricted Cash Result position and that the current indicative budget position for 2018/2019 outlined in this Budget Review remains for the remainder of the 2018/2019 financial year.

BYRON SHIRE COUNCIL

Staff Reports - Corporate and Community Services 13.8

Report No. 13.8 Investments October 2018

Directorate: Corporate and Community Services

Report Author: James Brickley, Manager Finance

File No: I2018/2007

Theme: Corporate Management

Financial Services

Summary:

This report includes a list of investments and identifies Council’s overall cash position for the month of October 2018 for Council’s information.

This report is prepared to comply with Regulation 212 of the Local Government (General) Regulation 2005.

RECOMMENDATION:

That the report listing Council’s investments and overall cash position as at 31 October 2018 be noted.

Report

In relation to the investment portfolio for the month of October 2018, Council has continued to maintain a diversified portfolio of investments. At 31 October 2018, the average 90 day bank bill rate (BBSW) for the month of October was 1.93%. Council’s performance to 31 October 2018 is 2.73% Council’s performance is again higher than the benchmark. This is largely due to the active ongoing management of the investment portfolio, maximising investment returns through secure term deposits and purchasing floating rate notes with attractive interest rates.

The table below identifies the investments held by Council as at 31 October 2018:

Schedule of Investments held as at 31 October 2018

Purch Date	Principal ($)	Description	CP*	Rating	Maturity Date	No Fossil Fuel ADI	Type	Interest Rate Per Annum	Current Value
28/10/16	650,000	Teachers Mutual Bank	Y	BBB+	28/10/19	Y	FRN	3.17%	655,144.56
24/03/17	1,000,000	NAB Social Bond (Gender Equality)	Y	AA-	24/03/22	N	B	3.25%	1,017,387.17
31/03/17	1,000,000	CBA Climate Bond	Y	AA-	31/03/22	N	FRN	3.25%	1,000,000.00
16/11/17	750,000	Bank of Queensland	Y	BBB+	16/11/21	N	FRN	2.63%	750,000.00
30/08/18	500,000	Bank Australia Ltd (Sustainability Bond)	Y	BBB+	30/08/21	N	FRN	3.20%	500,000.00
23/05/18	1,000,000	The Capricornian Credit Union	Y	NR	23/11/18	U	TD	2.85%	1,000,000.00
28/05/18	1,000,000	B & E Ltd (Bank of Us)	Y	NR	28/11/18	U	TD	2.85%	1,000,000.00
30/05/18	1,000,000	AMP Bank	Y	A	25/02/19	N	TD	2.80%	1,000,000.00
08/06/18	2,000,000	ME Bank	Y	BBB	07/12/18	Y	TD	2.84%	2,000,000.00
18/06/18	2,000,000	Beyond Bank	Y	BBB	18/12/18	Y	TD	2.75%	2,000,000.00
18/06/18	1,000,000	Gateway Credit Union	Y	NR	18/12/18	Y	TD	2.90%	1,000,000.00
09/07/18	1,000,000	Beyond Bank	N	BBB	10/12/18	Y	TD	2.75%	1,000,000.00
23/07/18	1,000,000	AMP Bank	N	A	21/01/19	N	TD	2.80%	1,000,000.00
01/08/18	1,000,000	Defence Bank	Y	BBB	30/01/19	U	TD	2.75%	1,000,000.00
03/08/18	2,000,000	AMP Bank	N	A	30/01/19	N	TD	2.80%	2,000,000.00
03/08/18	1,000,000	B & E Ltd (Bank of Us)	N	NR	02/11/18	U	TD	2.80%	1,000,000.00
06/08/18	2,000,000	NAB	N	AA-	05/11/18	N	TD	2.67%	2,000,000.00
07/08/18	1,000,000	Gateway Credit Union	N	NR	07/12/18	Y	TD	2.78%	1,000,000.00
07/08/18	2,000,000	ME Bank	N	BBB	04/02/19	Y	TD	2.70%	2,000,000.00
07/08/18	1,000,000	Coastline Credit Union	Y	NR	05/11/18	Y	TD	2.80%	1,000,000.00
08/08/18	1,000,000	AMP Bank	N	A	08/02/19	N	TD	2.80%	1,000,000.00
13/08/18	1,000,000	B & E Ltd (Bank of Us)	N	NR	12/11/18	Y	TD	2.75%	1,000,000.00
15/08/18	1,000,000	Police Credit Union Limited (SA)	Y	NR	15/11/18	Y	TD	2.70%	1,000,000.00
20/08/18	1,000,000	Maitland Mutual Building Society	Y	NR	19/11/18	Y	TD	2.70%	1,000,000.00
22/08/18	1,000,000	Suncorp	Y	A+	22/11/18	Y	TD	2.65%	1,000,000.00
30/08/18	1,000,000	Suncorp	N	A+	28/11/18	Y	TD	2.65%	1,000,000.00
30/08/18	2,000,000	NAB	N	AA-	14/12/18	N	TD	2.63%	2,000,000.00
31/08/18	2,000,000	Suncorp	N	A+	29/11/18	Y	TD	2.65%	2,000,000.00
03/09/18	1,000,000	Bank Vic	Y	NR	07/01/19	Y	TD	2.76%	1,000,000.00
04/09/18	1,000,000	Suncorp	N	A+	01/03/19	Y	TD	2.70%	1,000,000.00
06/09/18	1,000,000	Bananacoast Credit Union	Y	NR	06/03/19	Y	TD	2.70%	1,000,000.00
06/09/18	1,000,000	Suncorp	N	A+	05/03/19	Y	TD	2.70%	1,000,000.00
11/09/18	1,000,000	Bank Vic	N	NR	10/12/18	Y	TD	2.78%	1,000,000.00
12/09/18	1,000,000	Bankwest	Y	AA-	10/01/19	N	TD	2.65%	1,000,000.00
12/09/18	2,000,000	Suncorp	N	A	08/02/19	Y	TD	2.70%	2,000,000.00
17/09/18	1,000,000	The Capricornian Credit Union	N	NR	17/01/19	Y	TD	2.80%	1,000,000.00
17/09/18	1,000,000	The Capricornian Credit Union	N	NR	17/12/18	Y	TD	2.80%	1,000,000.00
17/09/18	1,000,000	Hunter United Employees Credit Union	Y	NR	17/12/18	Y	TD	2.80%	1,000,000.00
19/09/18	1,000,000	Maitland Mutual Building Society	N	NR	17/01/19	Y	TD	2.80%	1,000,000.00
21/09/18	1,000,000	ME Bank	N	BBB	05/02/19	Y	TD	2.67%	1,000,000.00
21/09/18	1,000,000	Police Credit Union Limited (SA)	N	NR	21/01/19	Y	TD	2.80%	1,000,000.00
24/09/18	1,000,000	Bankwest	N	AA-	22/01/19	N	TD	2.65%	1,000,000.00
27/09/18	1,000,000	Suncorp	N	A	25/01/19	Y	TD	2.65%	1,000,000.00
28/09/18	1,000,000	Police Credit Union Limited (SA)	N	NR	02/01/19	Y	TD	2.85%	1,000,000.00
02/10/18	1,000,000	Police Credit Union Limited (SA)	N	NR	03/01/19	Y	TD	2.80%	1,000,000.00
03/10/18	2,000,000	Police Credit Union Limited (SA)	N	NR	04/01/19	Y	TD	2.80%	2,000,000.00
03/10/18	1,000,000	NAB	N	AA-	31/01/19	N	TD	2.66%	1,000,000.00
03/10/18	1,000,000	Hunter United Employees Credit Union	N	NR	01/04/19	Y	TD	2.80%	1,000,000.00
03/10/18	1,000,000	NAB	N	AA-	31/01/19	N	TD	2.66%	1,000,000.00
04/10/18	1,000,000	NAB	N	AA-	04/04/19	N	TD	2.70%	1,000,000.00
04/10/18	1,000,000	Australian Military Bank	Y	NR	03/04/19	Y	TD	2.80%	1,000,000.00
10/10/18	1,000,000	NAB	N	AA-	07/02/19	N	TD	2.66%	1,000,000.00
15/10/18	1,000,000	Suncorp	N	A	15/04/19	Y	TD	2.65%	1,000,000.00
15/10/18	1,000,000	Australian Military Bank	N	NR	15/02/19	Y	YD	2.77%	1,000,000.00
17/10/18	1,000,000	Police Credit Union Limited (SA)	N	NR	14/02/19	Y	TD	2.85%	1,000,000.00
25/10/18	1,000,000	NAB	N	AA-	22/02/19	N	TD	2.67%	1,000,000.00
29/10/18	1,000,000	Maitland Mutual Building Society	N	NR	14/02/19	Y	TD	2.80%	1,000,000.00
29/10/18	2,000,000	NAB	N	AA-	29/03/19	N	TD	2.69%	2,000,000.00
30/10/18	1,000,000	Australian Military Bank	N	NR	30/04/19	Y	TD	2.90%	1,000,000.00
30/10/18	2,000,000	Australian Military Bank	N	NR	28/02/19	Y	TD	2.87%	2,000,000.00
31/10/18	1,000,000	B & E Ltd (Bank of Us)	N	NR	29/04/19	Y	TD	2.90%	1,000,000.00
31/10/18	2,000,000	NAB	N	AA-	29/03/19	N	TD	2.70%	2,000,000.00
N/A	1,486,024	CBA Business Online Saver	N	A	N/A	N	CALL	1.40%	1,486,024.30
12/01/18	1,016,709	NSW Treasury Corp	N	AAA	N/A	Y	CALL	2.40%	1,016,709.47
Total	75,402,733						AVG	2.73%	75,425,265.50

Note 1.	CP = Capital protection on maturity
	N = No Capital Protection
	Y = Fully covered by Government Guarantee
	P = Partial Government Guarantee of $250,000 (Financial Claims Scheme)

Note 2.	No Fossil Fuel ADI
	Y = No investment in Fossil Fuels
	N = Investment in Fossil Fuels
	U = Unknown Status

Note 3.	Type	Description
	B	Bonds	Principal can vary based on valuation, interest payable via a fixed interest, payable usually each quarter.
	FRN	Floating Rate Note	Principal can vary based on valuation, interest payable via a floating interest rate that varies each quarter.
	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.

Environmental and Socially Responsible Investing

An additional column has been added to the schedule of Investments above, to identify if the financial institution holding the Council investment, has been assessed as a ‘No Fossil Fuel’ investing institution. This information has been sourced through www.marketforces.org.au and identifies financial institutions that either invest in fossil fuel related industries or do not. The graph below highlights the percentage of each classification across Council’s total investment portfolio in respect of fossil fuels only.

The notion of Environmental and Socially Responsible Investing is much broader than whether a financial institution as rated by ‘marketforces.org.au’ invests in fossil fuels or not. Council’s current Investment Policy defines Environmental and Socially Responsible Investing at Section 4.1 of the Policy. Council’s Investment Policy can be found at Council’s website via the following link:

https://www.byron.nsw.gov.au/Council/Your-right-to-Council-information/Policies?dlv_OC%20CL%20Public%20DocLib%20Relative=(pageindex=6)

In this regard Council has an additional two investments that are with financial institutions that invest in fossil fuels but the purposes of the investments are in accord with the broader definition of Environmental and Socially Responsible investments as indicated below:

1. $1,000,000 investment with the National Australia Bank maturing on 24 March 2022 known as a Social Bond that promotes Gender Equity.

2. $1,000,000 investment with Commonwealth Bank maturing on 31 March 2022 known as a Climate Bond.

Investment Policy Compliance

Investment policy compliance
% per institution should not exceed the following			ACTUAL	Variance
Long Term	Short Term
AAA to AA	A1+	100%	39%	Meets policy
A+ to A-	A1	60%	7%	Meets policy
BBB to NR	A2,NR	40%	54%	Does not meet policy

The above table identifies compliance with Council’s Investment Policy in terms of the proportion of the investment portfolio actually invested with financial institutions and their associated credit ratings compared to parameters established in the Investment Policy. The intent of the parameters is a tool to manage credit risk and to ensure diversification of the investment portfolio. Currently financial institutions mainly offering investments in the ‘ethical’ area are those with lower credit ratings being either BBB or not rated at all ie credit unions.

Council needs to be aware that progressively moving more of the investment portfolio into the ‘ethical’ space will lower the credit quality of the investment portfolio overall and increase the credit risk (ie exposure to potential default). This is due to financial institutions with higher credit quality (ratings) are yet to provide more investment opportunities in the ‘ethical’ area or reduce their investment exposure to ‘fossil fuels’. To measure this issue the table above with the heading ‘Investment Policy Compliance’ will now also be produced for each Investment Report presented to Council monthly. Currently Council is exceeding the benchmark for the proportion of the investment portfolio invested in financial institutions with low credit ratings or no credit rating with 54% of the portfolio invested in this area compared to a tolerance of 40% so there is a view more of the investment policy has a higher level of exposure to credit risk then Council has determined via policy. To redress this imbalance, Council would need to invest more of the portfolio with institutions with higher credit ratings but this will reduce the percentage of the investment portfolio invested ethically.

For the month of October 2018, as indicated in the table below, there is a dissection of the investment portfolio by investment type:

Dissection of Council Investment Portfolio as at 31 October 2018

Principal Value ($)	Investment Linked to:-	Current Market Value ($)	Cumulative Unrealised Gain/(Loss) ($)
69,000,000.00	Term Deposits	69,000,000.00	0.00
2,900,000.00	Floating Rate Note	2,905,144.56	5,144.56
1,486,024.30	Business On-Line Saver (At Call)	1,486,024.30	0.00
1,016,709.47	NSW Treasury Corp (T Corp)	1,016,709.47	0.00
1,000,000.00	Bonds	1,017,387.17	17,387.17
75,402,733.77		75,425,265.50	22,531.73

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.

The table below provides a reconciliation of investment purchases and maturities for month of October 2018 on a current market value basis.

Movement in Investment Portfolio – 31 October 2018

Item	Current Market Value (at end of month) $
Opening Balance at 1 October 2018	78,021,198.11
Add: New Investments Purchased	22,000,000.00
Add: Call Account Additions	3,000,000.00
Add: Interest from Call Account	1,841.46
Less: Investments Matured	25,000,000.00
Add: T Corp Additions	0.00
Add: Interest from T Corp	2,225.93
Less: Call Account Redemption	2,600,000.00
Add: Fair Value Movement for period	0.00
Closing Balance at 31 October 2018	75,425,265.50

Investments Maturities and Returns – October 2018

Principal Value ($)	Description	Type	Maturity Date	Number of Days Invested	Interest Rate Per Annum	Interest Paid on Maturity $
1,000,000	AMP	TD	02/10/18	180	2.60%	12,821.92
1,000,000	Police Credit Union	TD	02/10/18	93	2.80%	14,054.79
2,000,000	Police Credit Union	TD	03/10/18	182	2.86%	28,521.64
1,000,000	NAB	TD	03/10/18	120	2.70%	8,876.71
1,000,000	Hunter United Employees Credit Union	TD	03/10/18	90	2.90%	7,150.68
1,000,000	NAB	TD	03/10/18	90	2.76%	6,805.48
1,000,000	NAB	TD	04/10/18	183	2.60%	13,035.62
1,000,000	NAB	TD	08/10/18	96	2.77%	7,285.48
1,000,000	Suncorp	TD	09/10/18	123	2.82%	9,435.62
1,000,000	Maitland Mutual Building Society	TD	15/10/18	153	2.85%	11,946.58
1,000,000	Suncorp	TD	15/10/18	122	2.80%	9,358.90
1,000,000	Police Credit Union	TD	17/10/18	183	2.94%	14,740.27
1,000,000	ME Bank	TD	22/10/18	90	2.73%	6,731.51
1,000,000	Bankwest	TD	22/10/18	91	2.65%	6,606.85
1,000,000	NAB	TD	22/10/18	91	2.68	6,681.64
2,000,000	ME Bank	TD	29/10/18	91	2.73%	13,612.60
1,000,000	Maitland Mutual Building Society	TD	29/10/18	180	2.83%	13,956.16
2,000,000	Bankwest	TD	30/10/18	90	2.65%	13,068.49
1,000,000	Bank of Vic	TD	30/10/18	90	2.82%	6,953.42
2,000,000	Police Credit Union	TD	30/10/18	181	2.83%	28,067.40
1,000,000	Bank of Us	TD	31/10/18	120	3.00%	9,863.01
25,000,000.00						249,574.77

The overall ‘cash position’ of Council is not only measured by what funds Council has invested but also by what funds Council has retained in its consolidated fund or bank account as well for operational purposes. In this regard, for the month of October 2018 the table below identifies the overall cash position of Council as follows:

Dissection of Council Cash Position as at 31 October 2018

Item	Principal Value ($)	Current Market Value ($)	Cumulative Unrealised Gain/(Loss) ($)
Investments Portfolio
Term Deposits	69,000,000.00	69,000,000.00	0.00
Floating Rate Note	2,900,000.00	2,905,144.56	5,144.56
Business On-Line Saver (At Call)	1,486,024.30	1,486,024.30	0.00
NSW Treasury Corp (T Corp)	1,016,709.47	1,016,709.47	0.00
Bonds	1,000,000.00	1,017,387.17	17,387.17
Total Investment Portfolio	75,402,733.77	75,425,265.50	22,531.73

Cash at Bank
Consolidated Fund	3,174,943.84	3,174,943.84	0.00
Total Cash at Bank	3,174,943.84	3,174,943.84	0.00

Total Cash Position	78,577,677.61	78,600,209.34	22,531.73

Financial Implications

Council uses a diversified mix of investments to achieve short, medium and long-term results

Statutory and Policy Compliance Implications

In accordance with Regulation 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 investment valuations required for the preparation of the report, are often received after the deadline for the submission of reports for the meeting. Endeavours will be made to ensure the required report will be provided to Council and this will for some months require reporting for one or more months.

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.

BYRON SHIRE COUNCIL

Staff Reports - Corporate and Community Services 13.9

Report No. 13.9 Mullumbimby Hospital Site Project Reference Group Recommendations: future use of the site

Directorate: Corporate and Community Services

Report Author: Deborah Stafford, Community Projects Officer (Generalist)

File No: I2018/2012

Theme: Corporate Management

Community Development

Summary:

The Mullumbimby Hospital Site Project Reference Group (PRG) has completed a 12 month, best practice participatory planning process and prepared recommendations to Council on the best future use of the Mullumbimby Hospital Site. This report seeks Council endorsement of the PRG’s recommendations and acknowledges that the PRG has achieved its objectives and can be dissolved.

RECOMMENDATION:

1. That the Mullumbimby Hospital Site Project Reference Group (PRG) recommendations on the best future use of the site are endorsed.

2. That the Mullumbimby Hospital Site Project Reference Group (PRG) is dissolved and the members thanked for their contribution.

Report

Background

The Mullumbimby Hospital Site Project Reference Group (PRG) was established by Council resolution (17-269) to provide recommendations to Council on the best use of the Hospital Hill site.

The PRG’s Constitution states that principles underpinning the PRG are based on The Community Charter – Planning for the people – a community charter for good planning in NSW and include:

· the wellbeing of the whole community, the environment and future generations is considered

· effective and genuine public participation is fundamental

· open, inclusive, transparent and accountable processes are undertaken

· objective and evidence-based advice is utilised

The Constitution states that the PRG objectives are to:

1. propose and consider potential uses for the former Mullumbimby Hospital site

2. utilise a best practice participatory planning process for the future use of the Hospital Hill site that gives the community and all stakeholders a genuine and meaningful voice

3. work with Council staff to develop an inclusive community engagement strategy for implementation by Council

4. consider potential constraints arising from the site contamination and the various options for remediating/ removing that contamination

5. develop a set of clear criteria for assessment of recommendations and options to Council

6. provide advice and recommendations to Council on the best outcome for the Hospital Hill site taking into consideration community and stakeholder input, data and zoning and regulatory requirements.

The objectives of the group have been met and the 12 month term completed on 31 October 2018, therefore the PRG members can be thanked and the committee dissolved.

PRG Process

In keeping with Council’s direction in engaging the community in decision-making, the participatory process used to develop these recommendations for Council has been the subject of much interest from staff across the organisation, other Councils and regional organisations.

To form the group, invitations were sent to over 40 local community groups and a public call for nominations from individuals was advertised. The final make-up of the PRG was 12 community organisational representatives, 5 individual community representatives and 4 councillors (21 in all).

It was acknowledged that the task was complex and would affect the community widely. It was also acknowledged that each group member had a real desire to see a positive outcome and offered unique experience, expertise and perspectives that would contribute to the collective “wisdom of the crowd”.

A rigorous and systematic deliberative process, informed by the work of newDemocracy, was designed to provide a strong foundation from which the group’s recommendations could be made.

The process consisted of 3 stages:

1. learning a great deal (collecting information and evidence, including wider community consultation and expert advice)

2. exploring common ground (discussion and dialogue investigating various issues and options from multiple viewpoints, thinking critically and deliberating)

3. deciding together (consensus seeking – building areas of informed agreement, moving beyond individual positions towards a collective mind and the general will of the group).

Various aspects of best practice public participation methodologies, such as IAP2, deliberative democracy and Harwood, were referenced in the development of the process.

The process will be evaluated by PRG members at a December meeting and will inform Council’s work in engaging community using the Byron Model of deliberative democracy.

PRG Recommendations

The recommendations from the Mullumbimby Hospital Site Project Reference Group (PRG) provide advice to Council on the best outcome for the Hospital Hill site, considering the wellbeing of the whole community, the environment and future generations.

1. Uses of the site

In broad terms, a mix of uses is proposed at a neighbourhood scale that does not compete with the town centre but creates synergy given the site’s strategic location, its topography and its neighbours.

With that objective:

· The substantial proportion (60% or more) should be residential development.

· Within the residential development, an integrated mix of types and tenures provides, and continues to provide, in perpetuity:

o housing that is affordable, accessible and appropriate for older people across a range of household income levels; and

o housing that is affordable, accessible and appropriate for households with very low, low and moderate income in response to Brunswick Valley community needs.

· The housing is supported by and supports an innovative neighbourhood scale multipurpose facility that is designed to allow multiple uses, some of which are not yet known, for people of all ages and income levels.

· The multipurpose facility includes space(s) for consultation and may potentially include spaces for work, education, gathering, recreation, and a café, all intended to support residents and community, encourage social contact and develop with neighbours new relationships and opportunities.

2. Design

The development of the site should align with, and acknowledge, the interrelatedness of social and cultural, environmental, economic and civic guiding principles outlined by the local community.

Development should therefore:

· be of exemplary, high quality design, especially architectural, landscape and urban design

· achieve high levels of environmental sustainability, including:

o preservation/enhancement of natural environment and local ecology (e.g. waterways, biodiversity, etc.)

o striving towards zero emissions

o strengthening community resilience and climate change precautions

o establishing green space (gardens and shade throughout) for people to interact in/with

· articulate, respect and celebrate the indigenous and non-indigenous history of the site

· connect strongly with the natural landscape and land form

· ensure aesthetic values are consistent with the local area

· be staged in a way that is integrated at each phase to create a coherent sense of place and encourage pedestrian movement within and around the site

· be consistent with principles of Crime Prevention Through Environmental Design (CPTED)

· enhance the social vitality, social capital and community wellbeing, and, specifically:

o meet community responsibility to provide benefit to vulnerable people

o support healing and health

o support inclusion and participation from people of all ages

o incorporate purposeful creativity, art and culture

o provide education/training and pathways to volunteering/employment for local people

o support innovation and social enterprise

o support local business in line with local values

o prioritise ethical investment and procurement

· be mindful of the wide diversity of people and opinions in the Brunswick Valley community

· be adaptable, where possible, to accommodate change that may not yet be anticipated or known

· be nested in the broader Mullumbimby Master Plan to contribute to an integrated approach to local development

· generate no or very limited current or future cost to local people and Council

3. Governance

To deliver and effectively manage ongoing outcomes on the site, development and governance mechanisms that allow Council and community to do this are needed.

Therefore:

· A range of best practice community-led governance mechanism needs to be reviewed, both for the project development stages and for the ongoing governance of the new site developments.

· Appropriate community-led governance opportunities^{^[1]} continue to inform project stages until the long-term, ongoing community-led governance mechanism is fully operational.

· Those mechanisms need to engage with Arakwal Corporation and Tweed Byron Aboriginal Land Council to ensure that cultural heritage considerations and land matters are managed and integrated appropriately.

· Should some of the chosen forms of development involve the sale of parts of the site and/or private-led marketplace activities, any profits achieved through sale or other activities should be reinvested back into achieving social and cultural, environmental or civic outcomes on the site.

· That the “horse paddock”^{^[2]} site be considered for development and sale.

· Part of the site should be identified and made available to a community housing provider, or equivalent entity, for the provision of housing that is affordable, accessible and appropriate.

· Short term holiday letting and its impact should be considered in light of the best interests of the site residents and local community.

· Council, or another entity, should continue consulting with providers including local high schools, Mullumbimby District Neighbourhood Centre, TAFE, Byron Youth Service, Southern Cross University, The Buttery and other relevant stakeholders in relation to possible uses of the multi-purpose facility on the site and, therefore, possible involvement in development and management matters.

· Council should identify any opportunities to facilitate partnerships and collaboration that contribute to achieving the best outcome for the site.

· Council should seek to identify any relevant grant funding/philanthropic opportunities in relation to the development of the site.

· Catholic Health Care (CHC) continues their existing use of the site and a market-based purchase of the current land is appropriate. Should CHC seek to expand their facilities or establish further facilities elsewhere on the overall site, their proposals must be considered equally alongside other proposals for the site from other parties.

Next Steps

The PRG requested that a media release be prepared to communicate the recommendations to the community as well as members’ networks and groups.

A consultant has been engaged to develop a Structure Plan for the site. The Structure Plan will include concept plan(s) and design principles (the PRG recommendations).

As stated in the PRG recommendations, further investigation of both operational delivery mechanisms and best practice community-led governance mechanisms is required.

A report will be brought to Council in February 2019 in relation to the Structure Plan and results of further investigation.

Financial Implications

None identified at this stage. Further consideration of financial implications will be addressed in the February 2019 report.

Legal Implications

The following advice has been provided by Council’s Legal Services team.

Use of the site

The contract for the purchase of the site provides that:

5.1 The Purchaser will only use the property for any of the purposes in clause 5.1C ("Allowed Purpose").

5.1A In using the property for an Allowed Purpose, the Purchaser can:

(a) earn income from the property to pay for the property's remediation;

(b) earn any other income from the property, provided this income is reinvested into the property; or

5.1B The Purchaser's right under clause 5.1A(c) is subject to the Purchaser contracting with

a future purchaser or lessee that the property will only be used for an Allowed

Purpose.

5.1C Under clause 5.1, the Allowed Purposes are:

· affordable housing

· centre-based child care facilities

· commercial premises

· community facilities

· early education and care facilities

· educational establishments

· environmental facilities

· function centres

· group homes

· information and education facilities

· markets

· mixed use development

· public land

· recreation areas

· recreation facilities

· residential care facilities

· respite day care centres

· schools

· school-based child care

· seniors housing; and/or

any other use which, in the Purchaser's reasonable opinion, has similar characteristics

to the above uses.

Each Allowed Purpose has the meaning given in the Byron Local Environmental Plan

2014, as amended from time to time.

Catholic Healthcare Limited

As to Catholic Healthcare Limited the contract provides:

4.4 The parties acknowledge and agree that:

a) the Purchaser, Vendor and Catholic Healthcare Limited (being the lessee under the lease attached to this contract) executed a deed on or around the date of this contract ('the Deed").

The Deed provides that:

2. Recognition of CHL Leases

2.1 HAC and BSC acknowledge that CHL has possession of part of the Land as the

tenant under the Leases being the part specified as the premises in the Leases (the

"Premises").

2.2 BSC agrees that if it acquires the Land from HAC (or any other registered proprietor of the Land):

(a) its acquisition will be subject to the Leases; and

(b) its covenants with CHL from the date of acquisition to observe and be bound by the terms of the Leases as landlord including without limitation clauses l.K and l .P.1

3. CHL Covenant

3.1 CHL covenants with BSC, from the date BSC acquires the Land, to continue to observe and be bound by the terms of the Leases as tenant.

4. BSC Undertakings regarding Subdivision and Registration

4.1 BSC covenants with CHL that:

(a) upon acquisition of the Land it will, at its cost promptly arrange for the Land to be subdivided to create a separate Lot for the part of the Land subject to the Leases ("Subdivision")

(b) following the Subdivision it will promptly arrange for registration of the Leases.

4.2 BSC covenants with CHL that it will not transfer, mortgage, encumber or otherwise deal with the Land subject to the Leases until such time as the Leases have been registered.

5. Negotiations as to Future Arrangements

5.1 Without in any way limiting the obligations of BSC under clauses 2 and 4, the parties agree to continue to meet regularly to negotiate in good faith proposals to extend the term of the Leases or otherwise secure CHL's occupancy of the Premises and to increase the area being occupied by CHL.

5.2 This clause 5 does not impose any obligation on either party (other than to act in good faith) to agree to any matters raised in the negotiations required under clause 5. 1.

The leases expire in November 2022.

Statutory and Policy Compliance Implications

This project sits within Council’s Community Strategic Plan, Delivery Program and Operational Plan as indicated below:

CSP Objective 5:

We have community led decision making which is open and inclusive

Delivery Program Action

Operational Plan Yr 2 Activity

5.1 Engage and involve community in decision making

Facilitate inclusive community consultation and stakeholder engagement to inform Council decision making

Develop a Byron Model for deliberative democracy

5.6 Manage Council’s resources sustainably

Develop and implement organisational innovation and creativity

Identify evidence based opportunities to enable creativity and innovation in local government.

BYRON SHIRE COUNCIL

Staff Reports - Corporate and Community Services 13.11

Report No. 13.11 Section 355 Management Committees - resignations and appointments

Directorate: Corporate and Community Services

Report Author: Joanne McMurtry, Community Project Officer

File No: I2018/2019

Theme: Society and Culture

Community Development

Summary:

This report updates Council on recent resignations and proposed appointments to Section 355 committees. Recruitment for new committee nominations for several Section 355 Management Committees has been underway through print advertising and social media.

RECOMMENDATION:

1. That the resignation of Adrienne Lester from the Bangalow A&I Hall Board of Management be accepted and a letter of thanks be provided.

2. That the nominee in Confidential Attachment 1 (#E2018/85809) be appointed to the Mullumbimby Civic Hall Board of Management.

3. That the nominees in Confidential Attachment 1 (#E2018/85809) be appointed to the Durrumbul Community Hall Management Committee.

4. That the nominee in Confidential Attachment 1 (#E2018/85809) be appointed to the Suffolk Park Community Management Hall Management Committee.

Attachments:

1 Confidential - Confidential attachment to report to 22 November Council meeting - additional community members for Section 355 committees, E2018/85809

Report

Resignations and Committee appointments

This report details resignations and proposed new appointments for Section 355 committees where nominations have been received.

Several Section 355 Management Committees have requested more/new members, including:

· Brunswick Heads Memorial Hall

· Brunswick Valley Community Centre

· Durrumbul Hall

· Mullumbimby Civic Hall

· Ocean Shores Community Centre

· Suffolk Park Community Hall

Bangalow A&I Hall Board of Management

A resignation has also been received from Adrienne Lester.

Current members on this Board of Management are:

Councillors

· Cr Cate Coorey

Community Representatives:

· Tony Heeson (Chair)

· Peta Heeson (Treasurer)

· Roland Dickson (Vice Chair)

· Don Osborne (Secretary)

· Damon Lewis

· John Hudson

· Michael Dowd

Management Recommendation:

That the resignation from Adrienne Lester is accepted and a letter of thanks provided.

Mullumbimby Civic Hall Board of Management

Following a period of advertising for more committee members, a nomination has been received for the Mullumbimby Civic Hall Board of Management. Details of the nominee can be found in Confidential Attachment 1.

Current members on this Board of Management are:

Councillors

· Cr Basil Cameron

· Cr Jeannette Martin (alternate)

Community Representatives:

· Glenn Wright (Chair)

· Sam Fell (Secretary)

· Maureen Lightfoot (Treasurer)

· Judy MacDonald

· Jennifer Parenteau

· John Dorczak

Management Recommendation:

That the nominee in Confidential Attachment 1 be appointed to the Mullumbimby Civic Hall Board of Management.

Durrumbul Community Hall

Following a period of advertising for more committee members, nominations have been received for the Durrumbul Community Hall Management Committee. Details of nominees can be found in Confidential Attachment 1.

Current members on this Board of Management are:

Councillors

· Cr Jeannette Martin

Community Representatives:

· Jane Shand (Chair)

· Duncan Dey (Secretary)

· Wayne Smith (Treasurer)

· Rommel Albanese

· Robin Buckley

Management Recommendation:

That the three nominees in Confidential Attachment 1 be appointed to the Durrumbul Community Hall Management Committee.

Suffolk Park Community Halls

Following a period of advertising for more committee members, nominations have been received for the Suffolk Park Community Hall Management Committee. Details of nominees can be found in Confidential Attachment 1.

Current members on this Board of Management are:

Councillors

· Cr Cate Coorey

· Cr Simon Richardson (alternate)

Community Representatives:

· Margaret Wiles (Chair)

· Joy Taylor (Secretary and Bookings Officer)

· Colleen Barton (Treasurer)

· Margaret Beazley

· Sergio Scudery

· Linda Holland

· Annabelle Sinclair

Management Recommendation:

That the nominee in Confidential Attachment 1 be appointed to the Suffolk Park Community Hall Management Committee.

Financial Implications

Community Members of Section 355 Management Committees are volunteer positions unless otherwise resolved by Council.

Statutory and Policy Compliance Implications

Management Committees and Boards of Management operate under Guidelines which states:

3.2 Committee Membership

Committee membership will number not less than four and not more than nine and each committee will state the actual number in their Terms of Reference unless otherwise decided by Council. The exception will be the Bangalow Parks (Showground) committee which numbers twelve. Council reserves the right to appoint up to two Councillors to each Committee. The total number of members includes office bearer committee members and Councillor members which are appointed by Council.

Whilst no particular qualifications are necessary (not withstanding 3.1.a), a commitment to the activities of the Committee and a willingness to be actively involved in Committee issues is essential. Committees work best when the workload is shared amongst committee members and there is evident goodwill and cooperation amongst members.

Further information on the operations and meeting minutes for these Committees and Boards can be found on Council’s web site at https://www.byron.nsw.gov.au/Council/Committees-and-groups/Section-355-Committees-and-Boards-of-Management.

BYRON SHIRE COUNCIL

Staff Reports - Corporate and Community Services 13.12

Report No. 13.12 Election of Deputy Mayor 2018-2019

Directorate: Corporate and Community Services

Report Author: Heather Sills, Corporate Governance Officer

File No: I2018/2039

Theme: Corporate Management

Councillor Services

Summary:

In accordance with Section 231 of the Local Government Act 1993 Councillors can elect a Deputy Mayor. Normal practice for Byron Shire is to elect their Deputy Mayor for a period of 12 months at the first meeting in September each year.

At the Ordinary Meeting of Council on 20 September 2018, Council resolved (18-619) that Council extend the period of Deputy Mayor to the October 2018 meeting and defer the election of a new Deputy Mayor to the next meeting of Council.

Further, at the Ordinary Meeting of Council on 18 October 2018, Council resolved (18-695) that the election of a Deputy Mayor be postponed until November 2018 and extend the term of the incumbent Deputy Mayor until an election is held.

RECOMMENDATION:

1. That Council elect a Deputy Mayor for the period from 22 November 2018 until the first meeting of Council in September 2019.

2. That the method of election of the Deputy Mayor be by way of ordinary ballot.

Attachments:

1 Byron Shire Council Nomination Form Deputy Mayor 2018, E2018/60931 ⇨

Report

In accordance with Section 231 of the Local Government Act 1993, a council may elect a Deputy Mayor to assist the Mayor in the performance of their duties.

(1) The councillors may elect a person from among their number to be the deputy mayor.

(2) The person may be elected for the mayoral term or a shorter term.

(3) The deputy mayor may exercise any function of the mayor at the request of the mayor or if the mayor is prevented by illness, absence or otherwise from exercising the function or if there is a casual vacancy in the office of mayor.

(4) The councillors may elect a person from among their number to act as deputy mayor if the deputy mayor is prevented by illness, absence or otherwise from exercising a function under this section, or if no deputy mayor has been elected.

Term of the Deputy Mayor

Section 231 (2) of the Local Government Act states: “The person may be elected for the mayoral term or a shorter term” such as:

1. For a period of 12 months

2. For the period of the Mayoral Term

3. For another period determined by Council

Returning Officer

Schedule 7(1) of the Local Government (General) Regulation 2005 states that the “General Manager (or a person appointed by the General Manager) is the Returning Officer.”

Nomination

Schedule 7(2) of the Local Government (General) Regulation 2005 states that:

(1) A councillor may be nominated without notice for election as mayor or deputy mayor.

(2) The nomination is to be made in writing by 2 or more councillors (one of whom may be the nominee). The nomination is not valid unless the nominee has indicated consent to the nomination in writing.

(3) The nomination is to be delivered or sent to the returning officer.

(4) The returning officer is to announce the names of the nominees at the council meeting at which the election is to be held.

Nomination forms have been provided as an attachment to this business paper. Any completed nomination forms should be handed to the General Manager prior to the commencement of the Council meeting.

Election

Schedule 7(3) of the Local Government (General) Regulation 2005 states:

(1) If only one councillor is nominated, that councillor is elected.

(2) If more than one councillor is nominated, the council is to resolve whether the election is to proceed by preferential ballot, by ordinary ballot; or by open voting.

(3) The election is to be held at the Council meeting at which the Council resolves the method of voting.

(4) In this clause:

“ballot” has its normal meaning of secret ballot;

“open voting” means voting by a show of hands or similar means.

Traditionally this Council has determined that the election for Deputy Mayor should be by ordinary ballot. The following additional information is provided in respect to an election by preferential ballot and by ordinary ballot.

Preferential ballot – as per its normal interpretation, the ballot papers are to contain the names of all candidates and Councillors mark their votes 1, 2, 3 and so on against the various names, so as to indicate their order of preference for all of the candidates.

Ordinary ballot – this is the usual method adopted in New South Wales. Ballots are secret with only one candidate’s name written on a ballot paper.

Where there are two candidates, the person with the most votes is elected. If the ballots for the two candidates are tied, the one to be elected is to be chosen by lots, with the first name out being declared elected.

Where there are three or more candidates, the person with the lowest number of votes is eliminated and the process started again until there are only two candidates. The determination of the election would then proceed as if the two were the only candidates. In the case of three or more candidates where a tie occurs, the one to be excluded will be chosen by lot.

Choosing by Lot – to choose a candidate by lot, the names of the candidates who have equal numbers of votes are written on similar slips of paper by the returning officer, the slips are folded by the returning officer so as to prevent the names being seen, the slips are mixed and one is drawn at random by the returning officer and the candidate whose name is on the drawn slip is chosen, on the basis detailed above.

Financial Implications

On 21 June 2018, Council resolved (18-420) in part 3: "That Council in accordance with its current practice not determine a fee payable to the Deputy Mayor."

Section 249(5) of the Local Government Act 1993 states:

(5) A council may pay the deputy mayor (if there is one) a fee determined by the council for such time as the deputy mayor acts in the office of the mayor. The amount of the fee so paid must be deducted from the mayor’s annual fee.

Therefore the Deputy Mayor when acting in the role of Mayor, in instances where the Mayor has leave of absence endorsed by Council, would be paid a fee calculated on a pro-rata basis of the annual Mayoral allowance, which would be deducted from the amount of the monthly Mayoral allowance paid to the Mayor, in accordance with Section 249 of the Local Government Act 1993.

Statutory and Policy Compliance Implications

The Deputy Mayor will undertake the Mayor’s role at the request of the Mayor and in situations where the Mayor is prevented by illness, absence or other reasons from exercising the functions of the position. The role of the Mayor is defined by Section 226 of the Local Government Act 1993.

Section 226 states that:

The role of the mayor is as follows:

(a) to be the leader of the council and a leader in the local community,

(b) to advance community cohesion and promote civic awareness,

(c) to be the principal member and spokesperson of the governing body, including representing the views of the council as to its local priorities,

(d) to exercise, in cases of necessity, the policy-making functions of the governing body of the council between meetings of the council,

(e) to preside at meetings of the council,

(f) to ensure that meetings of the council are conducted efficiently, effectively and in accordance with this Act,

(g) to ensure the timely development and adoption of the strategic plans, programs and policies of the council,

(h) to promote the effective and consistent implementation of the strategic plans, programs and policies of the council,

(i) to promote partnerships between the council and key stakeholders,

(j) to advise, consult with and provide strategic direction to the general manager in relation to the implementation of the strategic plans and policies of the council,

(k) in conjunction with the general manager, to ensure adequate opportunities and mechanisms for engagement between the council and the local community,

(l) to carry out the civic and ceremonial functions of the mayoral office,

(m) to represent the council on regional organisations and at inter-governmental forums at regional, State and Commonwealth level,

(n) in consultation with the councillors, to lead performance appraisals of the general manager,

(o) to exercise any other functions of the council that the council determines.

BYRON SHIRE COUNCIL

Staff Reports - Sustainable Environment and Economy 13.16

Staff Reports - Sustainable Environment and Economy

Report No. 13.16 Coastal Management Conference and potential for Byron Shire Council to host

Directorate: Sustainable Environment and Economy

Report Author: Chloe Dowsett, Coastal and Biodiversity Coordinatior

File No: I2018/609

Theme: Ecology

Planning Policy and Natural Environment

Summary:

At the Ordinary Meeting 3 August 2017, Council resolved as follows:

17-299 Resolved (relevant parts only):

· That Council submit a bid to host the 27th NSW Coastal Conference in 2018 and the next unallocated Australian Coastal Councils Conference.

· That if these submissions are unsuccessful, staff prepare a report on the implications of holding an event in Byron Shire, inviting key experts in coastal management.

Over the preceding 12 months staff have been liaising with the organisers of both coastal management events.

On 14 May 2018, staff were notified that Council’s bid to host the Australian Coastal Councils (ACC) Conference was unsuccessful. Feedback received from the organiser outlined that Council’s Expression of Interest was of an extremely high standard and it was a difficult decision based on the consideration of various other factors.

On 8 October 2018, staff were notified that Council’s bid to host the NSW Coastal Conference 2019 was also unsuccessful. Feasibility of the proposed venue along with costs were the main factor.

This report provides an update on the outcome of Council’s bid to host a coastal management event in Byron Bay. It also recommends that Council pursue the option of co-hosting the next available NSW Coastal Conference with a neighbouring coastal council.

RECOMMENDATION:

1. That Council note the unsuccessful outcome of the bid to host both the NSW Coastal Conference 2019 and the next unallocated Australian Coastal Councils Conference.

2. That Council pursue the option of co-hosting the next available NSW Coastal Conference with a neighbouring coastal Council in 2020.

Report

This report provides an update on the outcome of Council’s bid to host a coastal management event in Byron Bay.

Background

Council resolved at the 3 August 2017 meeting to submit a bid to host the 27th NSW Coastal Conference in 2018 and the next unallocated Australian Coastal Councils Conference.

17-299 Resolved (relevant parts only):

· That Council submit a bid to host the 27th NSW Coastal Conference in 2018 and the next unallocated Australian Coastal Councils Conference.

· That if these submissions are unsuccessful, staff prepare a report on the implications of holding an event in Byron Shire, inviting key experts in coastal management.

Subsequent to this resolution, staff approached the organisers of both events and expressed Council’s interest in hosting an event focussed on coastal management.

NSW Coastal Conference

The NSW Coastal Conference has grown to become one of the most successful coastal industry events held in Australia. The conference brings together 200 - 250 delegates from a diverse range of fields, including: all aspects of coastal, estuarine and marine management, science and research, and education, planning, policy and law; and includes representatives from government, the private sector and community groups and the interested public.

Past conferences have been held in Port Stephens (2017), Coffs Harbour (2016), Forster (2015), Shoalhaven (2014), Port Macquarie (2013), Kiama (2012), Tweed (2011), Batemans Bay (2010), Ballina (2009), Wollongong (2008), Yamba (2007), Coffs Harbour (2006) and Narooma (2005).

Traditionally at the end of each conference Councils bid for the rights to host the conference in their LGA the following year. The bid involves a description of the Council’s ability to assist in the organisation of the event including venue, accommodation options, conference dinner and invitation of guest and key speakers, nomination of themes and calling for papers and session presenters, poster displays and arranging off-site field trips.

At the time of the resolution in August 2017 a host had already been confirmed for the 27th NSW Coastal Conference (2018) held in Merimbula, on the Sapphire Coast. However, staff were advised that Council could put in a submission to host the 2019 event.

The conference is a three-day event which comprises of plenary sessions, concurrent sessions, panel discussions, workshops, a trade area, field trips (addressing some of the local coastal, estuary and marine management issues), networking events and the Annual NSW Coastal Management Awards. Byron has not yet hosted a conference, however, it is noted that estimated numbers of attendees may be up to 300 delegates (higher than most years) due to the high-level of interest in Byron’s coastline and attractive location for the event.

The host Council is required to provide the following:

· Form the Program Advisory Committee comprising a Councillor and relevant staff members and attend monthly teleconference meetings (or as required)

· Establish the theme for the event

· Complete the draft program outline for the event to enable the ‘Call for Abstracts’.

· Provide off-site field trips to allow delegates to visit areas demonstrating key coastal management issues/solutions

· Underwriting of the conference to an agreed set amount ($5,000 to $15,000)

Staff and the conference organiser reviewed in detail the suitability of accommodation and venue options for the event. At first pass the Cavanbah Centre was the most feasible as other venues could not cater for the anticipated numbers or requested a number of accommodation packages which were over the allocated budget. A quote was sent to the organiser outlining the venue costs for the Cavanbah Centre and a site visit was undertaken at the end of September to view the venue in more detail. After the site inspection the organiser felt that the basketball court would not work as a main plenary room and was concerned about the acoustics in this space. A marquee would also be required in for the trade area and if it was to rain delegates would get wet from venue to trade area.

The quote hire of the Cavanbah Centre was also over the conference budget.

As such Council’s bid to host the NSW Coastal Conference 2019 event was unsuccessful.

Australian Coastal Councils Conference

The Australian Coastal Council Conference is run by the Australian Coastal Councils Association Inc. The Association is a national body which represents the interests of coastal councils and their communities and was previously known as the National Sea Change Taskforce (for which Council was a member). The role of the Association is to advocate on behalf of coastal councils and commission research on behalf of councils in coastal areas in relation to a range of coastal issues.

Each year a conference is held around March, with the 2018 event held in Geelong, Victoria.

The host Council is required to support the event through various means such as:

· Providing the conference venue (either free of cost or at reduced cost)

· Financial sponsorship

· Providing assistance with local suppliers

· Arranging field tours

· Hosting a reception for delegates

· Providing input into the program

The conference is held at a national level in relation to coastal issues, hence unlike the NSW Coastal Conference it is not specific to NSW and applicable legislation and policies. The conference is also a 3 day event, with delegate numbers from 130 to 200. The conference is made up of plenary sessions, panel sessions, concurrent session, workshops and field trips.

Staff have been in contact with the organisers over the preceding months and have now received a response on the decision process. Council’s bid to host the Australian Coastal Councils (ACC) Conference was unsuccessful as per the advice received on the 14 May 2018:

“This is to advise that at a Committee meeting of the Australian Coastal Councils Association Inc. held today, it was decided to accept the bid by Kiama Municipal Council in NSW to host the 2019 Australian Coastal Council.

I am writing on behalf of the Committee of Management to thank you and your colleagues at Byron Shire Council for the Expression of Interest to host the event. As noted during today’s meeting it was an extremely difficult decision for the Committee and one that was made after extensive consideration of the various factors involved.

We would like to thank you for your input into the EOI process and for the extremely high standard of the submission received from your council”.

Recommendation

It is recommended that Council continue to pursue hosting an existing coastal management event, rather than pursue organising a new event. Reason being is that the most successful coastal industry event held in Australia is the NSW Coastal Conference with an event organiser coordinating all aspects of the conference at limited cost and resources to the host Council.

Should Council be interested in exploring the option of co-hosting the next available NSW Coastal Conference with a neighbouring coastal council (i.e. Ballina Shire Council or Tweed Shire Council), confirmation from the event organiser would be required along with a neighbouring council‘s agreement to co-host.

Financial Implications

Underwriting of the NSW Coastal Conference usually costs the host council up to $15,000 however, should the conference be co-hosted these costs may decrease.

Statutory and Policy Compliance Implications

Nil.

BYRON SHIRE COUNCIL

Staff Reports - Sustainable Environment and Economy 13.17

Report No. 13.17 PLANNING – 26.2018.2.1 - Planning Proposal for an amendment to Byron LEP 2014 and Byron LEP 1988 to permit Community Title subdivision and dwellings at Lot 1 DP 1031848, The Coast Road, Broken Head (The Linnaeus Estate)

Directorate: Sustainable Environment and Economy

Report Author: Steve Daniels, Project Officer - Planning Reforms

File No: I2018/1773

Theme: Sustainable Environment and Economy

Planning Policy and Natural Environment

Summary:

Council has received a planning proposal to amend Byron LEP 2014 and Byron LEP 1988. The planning proposal is to include Lot 1 DP 1031848 (The Linnaeus Estate, Broken Head) in Schedule 1 of BLEP 2014 and Schedule 8 of BLEP 1988 to permit the Community Title subdivision of the land to create 33 small lots, with the balance in a single community lot. The use of the small lots for dwellings is foreshadowed subject to future development consent. The planning proposal is consistent with the Byron Rural Land Use Strategy 2017 and the North Coast Regional Plan.

It is recommended that Council proceed with the planning proposal as submitted and forward it to the Department of Planning and Environment for a Gateway Determination.

RECOMMENDATION:

That Council:

1. Request the NSW Department of Planning and Environment to issue a Gateway determination for the planning proposal, as included at Attachment 1 (E2018/87474) which proposes to include Lot 1 DP 1031848 (The Linnaeus Estate, Broken Head) in Schedule 1 of BLEP 2014 and Schedule 8 of BLEP 1988 to permit the Community Title subdivision of the land to create 33 small lots, with the balance in a single community lot.

2. Obtain any further studies from the applicant if required by the Gateway determination. Then undertake public exhibition of the planning proposal and government agency consultation based on the Gateway determination; and

3. Receive a further report post-exhibition about issues raised in public and/or government agency submissions received (if any).

Attachments:

1 26.2018.2.1 Planning Proposal for Lot 1 DP 1031848, The Coast Road, Broken Head - Version 1 (Gateway), E2018/87474 ⇨

2 Template - Form of Special Disclosure of Pecuniary Interest, E2012/2815 ⇨

Report

Subject Land

The subject land is described as Lot 1 DP 1031848, The Coast Road, Broken Head (The Linnaeus Estate). It is an area of 111 hectares with a 1500 metre beach frontage and a 530 metres frontage to The Coast Road. It is located on the boundary with Ballina Shire immediately south of Broken Head. It has a series of approvals relating to its use as a private education facility. These approvals include 33 accommodation units of which 20 have been built.

Subject site (in part) showing existing structures

The Planning Proposal

The planning proposal (Attachment A) will permit:

§ A subdivision using a neighbourhood community title scheme creating a total of 33 neighbourhood lots with a minimum size of 250m² each. Each lot can be privately owned. It will also include one lot comprising the residue of the land that will be in shared ownership.

§ Each privately owned lot to contain only one dwelling.

The proponent has lodged the planning proposal because the amendment will permit the subdivision of the existing and approved accommodation units allowing clear title to each of them. Community Title will replace the complex trust/lease/deed arrangement currently in place. Each accommodation unit can be used as a dwelling if the owners obtain Council consent.

Past Council Resolutions on this Planning Proposal

On 2 February 2015 Council considered a draft Planning Proposal for an amendment to the Byron LEP 2014 to rezone land and permit Community Title at Lot 1 DP 1031848, The Coast Road, Broken Head (The Linnaeus Estate). The planning proposal was unsolicited and submitted by the landowners. Council resolved as follows:

15-029 Resolved:

1. That Council decline to proceed with the attached planning proposal to amend Byron LEP 2014.

2. That Council investigate the suitability of the site for Community Title subdivision during preparation of the Byron Urban and Rural Housing Strategy.

3. That Council defer any new zonings on the site until after release of the final E zone review report.

4. That, at the next general update of Byron LEP 2014, Council agree to amend the SP1 zone on Lot 1 DP 1031848 to refer to a private education facility and amend Schedule 1 to define private education facility and specifically permit it as a use on the subject land.

In July 2018 the NSW Department of Planning and Environment agreed to the Byron Rural Land Use Strategy. This Strategy now includes the subject land.

New zones on the subject land are still being considered as part of the E zone review and this is subject to a separate planning proposal.

Council has amended the current SPI zone (as part of the LEP housekeeping amendments gazetted in 2017) to refer to “Mixed Use Development”. Mixed use development means a building or place comprising 2 or more different land uses. Additionally, the amendment identified the SP1 zoned land as “Area D” on the Additional Permitted Uses Map and is subject to clause ‘8’ in Schedule 1 of Byron LEP 2014. The additional permitted use is as follows:

8 Use of certain land at Coast Road, Broken Head

(1) This clause applies to land at The Coast Road, Broken Head (known as the Linnaeus Estate) being part of Lot 1, DP 1031848, and identified as “Area D” on the Additional Permitted Uses Map.

(2) Development for the purposes of mixed use development that includes tourist or visitor accommodation is permitted with development consent.

(3) Development consent may only be granted under this clause if the consent authority is satisfied that the proposed development:

(a) is ancillary to a lawful existing land use, and

(b) is for the purpose of providing education or training for professional and personal development through a variety of academic, cultural and vocational programs.

Key Issues

Byron Rural Land Use Strategy

Byron Rural Land Use Strategy 2017 has identified the subject land as a “priority site for future rural lifestyle living opportunities”. The subject land is identified for “Community Title conversion of approved accommodation units only (i.e. no additional dwelling yield)”. This strategy was endorsed by the NSW Department of Planning and Environment (DPE) in July 2018.

North Coast Regional Plan

As it is now in the Byron Rural Land Use Strategy 2017, it is consistent with the North Coast Regional Plan 2036 which states: “New rural residential housing will not be permitted in the coastal strip, unless the land is already zoned for this purpose, or is identified in a Department endorsed current or future local growth management strategy (or rural residential land release strategy).”

Amending Two LEPs

The subject land is currently zoned under both Byron LEP 1988 (BLEP88) and Byron LEP 2014 (BLEP14). It is a complex mix of land use zones. The approved 33 accommodation structures are located partly in the SP1 Mixed Use zone under BLEP 2014 and partly within the 5A Special Uses, 7D Scenic Escarpment, and 7F1 Coastal Lands zones under BLEP 1988. If only one of the LEPs is amended then only part of the site can be subdivided under community title. A development consent issued under one LEP cannot apply to land to which a different LEP applies. Preliminary contact with DPE officers indicated it would consider amending both BLEP 2014 and BLEP 1988 in these circumstances.

Coastal Erosion

Part of the subject land is affected by coastal erosion both in the immediate and long term (100 year projection). A map showing the projected erosion lines as mapped in Byron DCP 2010 Part J is included in the Planning Proposal. As many as 15 of the 33 approved accommodation structures may be affected by coastal processes over the long term. The structures are all approved and 20 have been built already. With the prospective subdivision and dwelling consent process Council has the ability to impose conditions requiring dwellings to be removed when the erosion threat is imminent. These conditions have been imposed on past approvals for accommodation on this site.

SEPP Coastal Management

The subject land is partly affected by coastal environment area, coastal use area, coastal wetlands and littoral rainforest mapping under SEPP (Coastal Management) 2018. The accuracy of this mapping is disputed by the landowner and Council staff agrees that not all of it is accurate, however this will need to be resolved as a separate process. The provisions of the SEPP will apply to the subject land as per the maps that prevail at the time a development application is being assessed. This is not a matter that should delay this planning proposal.

S. 9.1 Ministerial Directions (previously s. 117)

The planning proposal is justifiably inconsistent with certain Section 9.1 directions because it:

· has not yet been referred to RFS for bushfire consideration (Direction 4.4)

· introduces site specific provisions (Direction 6.3)

· enables increased development on land identified as being affected by current or future coastal hazard (Direction 2.2)

· restricts the potential development of resources on the site (Direction 1.3)

These justifiable inconsistencies are all discussed in more detail in the planning proposal.

Past DAs

Linnaeus Estate has two substantive approvals being DA 98/0146 which was issued by the Land and Environment Court in 1998 (and amended by consent orders in 2001, 2002, and 2004) and DA 10.2013.600.1.

DA 98/0146 issued in 1998 permitted a private education facility which included 30 buildings of which 24 were accommodation units (inclusive of 2 staff residences and disabled accommodation) with self-contained facilities for sleeping and cooking meals. No laundries were permitted in the accommodation units. There was also a camping ground and community buildings.

A subsequent amendment in 2001 increased accommodation unit floor areas from 110 sq metres to 123 sq metres (Type A units) and from 106 sq metres to 118 sq metres (Type B units). External decking was also added to accommodation units.

In 2002 an amendment was sought to the main communal building. This amendment expanded the approved disabled accommodation unit (attached to the communal building) from 1 unit to 4 detached units, bringing the total number of approved accommodation units to 27.

In 2003 two further modifications were lodged to increase daily sewage disposal from 6000 litres per day to 16,800 litres per day; increase maximum number of persons on site from 72 to 112; permit laundry facilities in the accommodation units; and provide additional areas for treated wastewater to be dispersed. These were agreed to by the Court in 2004.

DA 10.2013.600.1 was approved in 2014 by Council and permitted the reconfiguration of the private education accommodation by deletion of the camping sites and replacement with six additional accommodation units. The use of these buildings must cease if the erosion escarpment comes within 50 metres of the buildings the subject of this consent.

In total, 33 accommodation units (inclusive of 2 staff residences) are approved for the site and indicated on the proposed lot layout in Appendix 1 to the planning proposal (Attachment A).

Options to Move Forward

1. Proceed with the planning proposal and request DPE to proceed to issue a Gateway determination for the planning proposal as attached to this report

2. Don’t proceed with the planning proposal and provide reasons to the applicant

Conclusion

Council has anticipated this planning proposal in response to the subject land being identified in the Byron Rural Land Use Strategy 2017. There is sufficient information to support the planning proposal as submitted and forward it to the Department of Planning and Environment for a Gateway Determination. This forms the basis of the report recommendation.

Financial Implications

If Council chooses to proceed with the planning proposal, it will be at the proponent’s expense as a landowner initiated planning proposal. Full cost recovery of the remaining stages will be required by Council. If the applicant chooses not to pay then the planning proposal will not proceed.

If Council chooses not to proceed then the matter does not incur any additional costs.

Statutory and Policy Compliance Implications

The relevant policy considerations are addressed above and in the planning proposal attached to this report.

BYRON SHIRE COUNCIL

Staff Reports - Sustainable Environment and Economy 13.18

Report No. 13.18 PLANNING - Development Application 10.2018.86.1 - Installation of a Telecommunications Facility with Ancillary Equipment at Lot 339 DP 755692 Old Pacific Highway Brunswick Heads

Directorate: Sustainable Environment and Economy

Report Author: Greg Smith, Team Leader Planning Services

File No: I2018/1882

Theme: Sustainable Environment and Economy

Development and Certification

Proposal:

Proposal description:	Installation of 30m High Telecommunications Facility and Associated Ancillary Equipment
Property description:	LOT: 339 DP: 755692
Property description:	Old Pacific Highway BRUNSWICK HEADS
Parcel No/s:	164530
Applicant:	Aurecon
Owner:	Brunswick Heads Bowling Club
Zoning:	RE2 Private Recreation
Date received:	27 February 2018
Integrated Development:	No
Delegation to determination:	Council
Issues:	· Further Consultation as per Council Resolution 18-441

Summary:

The DA proposes installation of a telecommunications facility and associated ancillary equipment. The location is part of the site of the Brunswick Heads Bowling Club. The DA was considered at the Council meeting on 2 August 2018. Council resolved to defer consideration of the DA to allow the Applicant to liaise with Brunswick Heads Progress Association, Brunswick Chamber of Commerce, Brunswick Heads Primary School P&C and other relevant local groups, to seek input and feedback on the proposed location and, if possible, to consider alternate sites. The results of the further consultation have been provided by the Applicant to Council and are outlined in this Report. The Applicant has also submitted amended plans, relocating the development to the east and slightly further away from the Old Pacific Highway frontage of the site.

The proposed development is generally consistent with the relevant environmental planning instruments and planning controls applicable to the site including the LEP and DCP provisions for this type of development, excluding the height provisions under Clause 4.3 of BLEP 2014. The telecommunications facility has a proposed maximum height of approximately 31.5m which exceeds the 9m maximum development standard.

The DA is supported by a written request for a variation pursuant to clause 4.6 of LEP 2014. It is considered that strict compliance with the development standard is not warranted in this instance. In particular a telecommunications facility would be ineffective at 9 metres in height. It is noted the telecommunications facility is located at the southern entrance to Brunswick Heads adjacent to the Bowls Club and next to an existing shed. The area is in part vegetated with a mixture of eucalypts and other coastal species helping to screen the telecommunications facility as it is approached from Brunswick Heads to the north and from the Pacific Highway to the south. Further landscaping is also recommended by way of a condition of consent to soften the visual impact of the telecommunications facility compound. The proposal is unlikely to have a significant impact on the visual amenity of the locality.

The proposal raises no significant environmental impacts which cannot be managed through reasonable and relevant conditions of approval, and the site is considered suitable for the development as discussed in this Report. In this regard numerous sites were considered in the Brunswick Heads area, including those mentioned in the previous Report to Council and further sites mentioned in this Report, with the Bowling Club site selected as the preferred property for the telecommunications facility.

The proposed telecommunications facility will provide improved mobile coverage for residents, businesses, tourists and other visitors to the area. The application is recommended for approval subject to conditions of consent.

RECOMMENDATION:

Pursuant to Section 80 of the Environmental Planning & Assessment Act 1979, Development Application No. 10.2018.86.1 for installation of 30m high telecommunications facility and associated ancillary equipment, be approved subject to conditions listed in Attachment 2 #E2018/83848.

Attachments:

1 Plans of proposed development, E2018/83840 ⇨

2 Conditions of consent, E2018/83848 ⇨

3 Previous Report to Council Meeting of 2 August 2018, E2018/79956 ⇨

4 Email dated 3 September 2018 from Applicant regarding consultation with local groups, E2018/79958 ⇨

5 Email dated 7 September 2018 from Applicant regarding consultation with local groups, E2018/79959 ⇨

Report

Assessment:

The following report needs to be read as an Addendum to Council Report 13.17 from the Ordinary Meeting of the 2 August 2018. (See Attachment 3)

1. HISTORY / BACKGROUND

Council considered a report at it’s meeting on 2 August 2018 recommending approval of the development application, and resolved as follows:

(Res 18-441)

1. That Council defer this matter.

2. That the proponents liaise with Brunswick Heads Progress Association, Brunswick Chamber of Commerce, Brunswick Heads Primary School P&C and other relevant local groups, to seek input and feedback on the proposed location and, if possible, to consider alternate sites.

2. CONSULTATION BY THE APPLICANT AS PER COUNCIL RESOLUTION

In response to the Council resolution, the Applicant provided a preliminary status update of stakeholder consultations by way of email dated 3/9/2018 (E2018/74912) as follows:

· Soccer Club – Emailed Ken on 13/8/2018 and sent follow up email on 20/8/2018. Yet to receive a response.

· AFL – Emailed President (Matt) on 14/8/2018 and again on 21/8/2018. Spoke with President on 27/8/2018 and provided full information pack on 29/8/2018. This is further discussed below.

· Brunswick Heads Primary School P&C – Left voicemail for President (Doug) on 14/8/2018, spoke with him later on 14/8/2018 and also sent full information pack. No response received.

· Cricket Club – Spoke with Robby (contact provided by Council) who is no longer involved with the Club but provided the Club’s general address and the correct person. Email sent on 20/8/2018. No response received.

· Brunswick Area Responsible Canine Owners – Spoke with Maggie, who provided the Club’s general address – email sent on 20/8/2018. No response received.

· Billygoats Rugby Club – Spoke with President Ben on 15/8/2018. He expressed concern about the facility being so close to where children play and EME. Applicant explained the need for facility and reasons as to why the site was chosen. The President requested further information about the proposal. Email sent with information on 17/8/2018. No response received.

· Brunswick Heads Sports Association – Left voicemail with Nick on 15/8/2018 and sent email on 20/8/2018. No response received.

· Progress Association – Ongoing communication, including a teleconference on 22/8/2018. The Progress Association has concerns about proximity to the oval and visual impact. Alternative options were discussed and reasons why they were unsuitable were explained. It was raised by Telstra that it would be possible to move the proposed lease area to the east, behind the existing Bowling Club shed – which would provide slightly more screening of the facility from the Highway. Revised photomontages and drawings were provided to the Progress Association for discussion at their next meeting. The Progress Association to provide an update (discussed below).

· Chamber of Commerce – Ongoing communication via email. Chamber raised the possibility of moving the facility to the east, which Telstra has investigated (as indicated). Revised montages and drawings were provided, yet to receive a response.

The Applicant provided a final update of the stakeholder consultation process by way of email dated 7/9/2018 (E2018/74906), as follows:

· Brunswick Heads Progress Association – Acknowledge finding a suitable location was difficult and agree moving the facility any further to the east will help reduce visual impact. Montages and drawings were revised and submitted (discussed below) to reflect the location change.

· Brunswick Heads Chamber of Commerce – Prefer a change in location, further to the east, to help reduce visual impact. Further correspondence was provided to the applicant following consideration of the amended plans dated 18^th September 2018 whereby they advised that “the Executive are happy with the current plan”.

· The AFL Club – In opposition to the proposal with concerns around EME. Requested Telstra pay for lighting and upgrade of facilities at oval, as a way of alleviating perceived negative impact. The Applicant responded by way of email dated 6/9/2018 as follows:

“In regards to EME, which I presume is the concern you raise, Telstra must adhere to the output standards that are set by the Australian Communications and Media Authority. All base stations in Australia are required to operate within this standard – which are deemed to be safe to all members of the community 24 hours a day/7 days a week.

We understand the Byron Shire Council area is a unique environment. There is also a need and demand for mobile communication in the area from residents, businesses and tourists. Telstra are responding to this demand and have endeavoured to find the most appropriate location for a facility in the Brunswick Heads area. As mentioned, it has taken many years of investigations.

Telstra has numerous telecommunications facilities located on sporting fields around Australia. This proposed facility however, would be wholly located on the Brunswick Heads Bowling Club lot and would not physically impede on the adjacent lot.

The owner of the sporting oval is Crown Land with Byron Shire Council as the Crown Land Manager and any upgrade works would obviously need to be requested/discussed with the owner of the land or Council, as the Crown Land Manager.

As a matter of probity Telstra are unable to pay for capital works on nearby properties, as a way of obtaining support or diminishing opposition to a new proposal. However, Telstra is sympathetic to your requirement to upgrade the amenities at the sporting ovals. If Council grant Telstra development consent for the proposed facility at the bowling club, it is likely the consent conditions will include a requirement for Telstra to pay Council a Section 7.12 contribution (previously known as s94A contributions). These Section 7.12 contributions enable local councils to levy monetary contributions for public amenities required as a consequence of development”.

No further correspondence has been received.

· Telstra and Aurecon have endeavoured to consult with all the persons/stakeholders Council noted.

The Applicant has submitted amended plans (Attachment 1 to this Report) in support of the DA. These include relocating the telecommunications facility an estimated 16m to the east of the original proposed location, from the western side of the small shed associated with the Bowling Club to eastern side of the shed. The proposed location is further away from the Old Pacific Highway and better screened from view when approached from the south of the site due to an intervening tall tree.

Original proposed location

Modified proposed location

View north along Old Pacific Highway

of original proposed location

View north along Old Pacific Highway

of modified proposed location

The amended plans were referred to Essential Energy due to the proximity of the modified telecommunications facility location to a power pole and power lines and in accordance with clause 45 of State Environmental Planning Policy (Infrastructure) 2007. Essential Energy has advised that it has no objection to the proposed telecommunication facility subject to conditions of consent.

The amended plans were also referred to Council’s Development Engineer who reviewed the plans and confirmed that the previously recommended engineering conditions remain unchanged.

In relation to other potential sites (including for example the nearby Brunswick Heads Sewage Treatment Plant), the Applicant advised as follows:

“Brunswick Heads Water Tanks - Lot 1 DP 584730

This location is unfortunately too far to the south west of the target coverage area (being the township of Brunswick Heads). Even a tall facility would not adequately provide increased capacity and coverage service into Brunswick Heads. The localities of Ocean Shores and Mullumbimby require their own dedicated telecommunications facility.

Brunswick Heads Sewerage Treatment Plant - Lot 1 DP 560486

An access agreement could not be obtained for this location. The driveway traverses Crown Land Lot 398 DP 724682 and there is an active Aboriginal Land Claim over the site, being the Tweed Byron Local Aboriginal Land Council lodged on the 28^th October 2005. We were advised by Crown Land the claim is yet to be investigated and they are unable to provide a timeframe for when this investigation may occur. We were advised Crown Lands are not permitted to authorise owners consent for the creation of a legal burden over the land in the form of a lease, licence or easement while the claim remains unresolved. Additionally (as you mentioned) the location directly adjoins the Cape Byron Marine Park and I believe Council has redevelopment plans for the site.

Behind Brunswick Heads Community Centre - Lot 436 DP 839424

This location is too far to the east and a 360 degree coverage radius would not be achievable, thus making a facility in this location inefficient. The location is also close to residential properties and a telecommunications facility would likely impact on ocean and creek views.

Behind Brunswick Heads Library - Lot 1 DP 105062

A number of locations were identified in the centre of Brunswick Heads, similar to this location. However, from a planning perspective the proximity to residential properties and the impact to directly adjoining owners, was considered to be too great. A number of the central locations also did not offer adequate space for a facility.

Behind the Brunswick Heads Memorial Hall - Lot 10 DP758171

Similar to Candidate D, this location is in close proximity to residential properties and is heritage listed”.

3. CONCLUSION

The proposed telecommunications facility and associated ancillary equipment will provide for improved access to mobile telecommunication for the residents and visitors of Brunswick Heads.

It is considered the site is suitable and the proposal will not have an adverse impact on the built or natural environment of the locality. The DA is recommended for approval subject to conditions of consent.

BYRON SHIRE COUNCIL

Staff Reports - Sustainable Environment and Economy 13.19

Report No. 13.19 CZMP for the Eastern Precincts of the BBE - Request for Ministerial Certification Outcome

Directorate: Sustainable Environment and Economy

Report Author: Chloe Dowsett, Coastal and Biodiversity Coordinatior

File No: I2018/1973

Theme: Sustainable Environment and Economy

Planning Policy and Natural Environment

Summary:

Council has been at the forefront of adaptive planning which takes into consideration the risk of coastal hazards and unknown sea level rise, however with 10 years of making coastal plans, Council has been unable to achieve Ministerial certification of any Coastal Zone Management Plan (CZMP) under the former Coastal Protection Act 1979 (CP Act) for any part of the coastline.

On 4 July 2018 the third consecutive CZMP (CZMP for the Eastern Precincts of the Byron Bay Embayment, 2018) was re-submitted to the Minister for the Environment (the Hon Gabrielle Upton) under section 55G of the Coastal Protection Act 1979 (CP Act), for certification within the pending timeframes of the repeal of the CP Act, and commencement of the new coastal legislation.

Formal written advice from the Chief Executive of the Office of Environment and Heritage (OEH) received 16 October 2018 outlines that the CZMP (2018) was not referred to the Minister for certification due to legal uncertainty, and hence returned to Council advising Council to commence development of a Coastal Management Program for the whole Byron Bay Embayment.

This report provides a brief update of the making of CZMPs by Council over the preceding years and the outcome of the assessment process of the most recent CZMP for the Eastern Precincts of the Byron Bay Embayment re-submitted to the Minister on 4 July 2018.

RECOMMENDATION:

1. That Council request an urgent meeting the Minister for the Environment, the Hon Gabrielle Upton and the NSW State Premier, Gladys Berejiklian asking for the re-consideration of Ministerial certification of the Coastal Zone Management Plan of the Eastern Precincts of the Byron Bay Embayment (2018).

2. That Council seek formal written correspondence on the status of the Ministerial Direction issued on 12 October 2011 to submit a draft Coastal Zone Management Plan in accordance with the requirements under Part 4A of the Coastal Protection Act for the coastline that is a beach between the southern extremity of the beach within Tyagarah Nature Reserve and Cape Byron, known as Belongil, Main Beach and Clarkes Beaches, Byron Bay.

3. That Council note the current and future coastal projects being delivered by Council.

Attachments:

1 Letter from NSW Government Office of Environment & Heritage Director Anthony Lean to Mark Arnold GM - Coastal Zone Management Plan for the Eastern Precinct not recommended for certification, S2018/13222 ⇨

Background

The Byron Shire coastline has a long history of large coastal storms and coastal erosion, and has been identified through numerous studies as an area that is undergoing long-term coastal recession (landward movement of the shoreline).

Because of pressure from population growth, development and tourism, a concerted effort has been and continues to be required by Council to manage coastal hazards, maintain beach amenity, beach access, the natural environment, social and cultural values.

Council has been proactive in its strategy to manage coastal hazards through the application of planning and development controls on development in urban coastal hazard risk areas (Byron LEP 1988 and Part J, controls under Council’s DCP, 2010). One of the guiding principles of the Byron LEP 1988 is the 'precautionary principle', namely that: “… actions will need to be taken to prevent damage even when it is not certain that damage will occur".

The approach was adopted in 1988 and provides for specified types of structures until such time as the erosion escarpment recedes to a defined distance to the development, after which time development consent ceases and the development (or relevant part of it) is to be relocated or removed.

Other management strategies have historically been implemented including the retention and implementation of coastal protection works at Main Beach (Jonson Street) and Wategos Beach, dune and public access and safety management.

Like many other coastal councils in NSW and Australia wide, managing the coastline is contentious and not without its challenges; legacy and historical issues add to the difficulty of the progress.

Council to date, has been at the forefront of adaptive planning which takes into consideration the risk of coastal hazards and unknown sea level rise, however with 10 years of making coastal plans, Council has been unable to achieve Ministerial certification of any Coastal Zone Management Plan (CZMP) under the former Coastal Protection Act 1979 (CP Act) for any part of the coastline. Without a certified CZMP, an endorsed plan to guide the management of the coastline and associated funding is restricted.

CZMP for the Byron Shire Coastline (2010)

On 1 September 2010 Council forwarded its draft CZMP for the Byron Shire Coastline (CZMP, 2010) to the Minister for Climate Change and the Environment (the former Hon Frank Sartor) for approval under Section 55G of the CP Act. Subsequent to the date of submission of the CZMP (2010) amendments to the CP Act came into effect, and the Act then provided for certification of the plan by the Minister under Section 55G of the CP Act.

On 22 February 2011 Council received a letter from the Minister which requested some information be provided, and which enclosed a Direction under section 55G(4)(b) of the CP Act for the draft CZMP (2010) to be amended in accordance with the requirements of the Direction.

Some of the changes requested represented a significant departure from the strategic planning framework that has underpinned coastline management in the Shire for over 20 years, and if undertaken would undermine the many years of planning investigation and consultation that had culminated in the draft CZMP (2010).

The changes were not supported and Council resolved to withdraw the CZMP (2010) on 14 April 2011. On 28 April 2011 Council wrote to the former Minister for the Environment (the Hon Robyn Parker) advising that Council no longer wished to proceed with the draft CZMP (2010).

In parallel with the submission of the draft CZMP (2010) Belongil Beach was designated one of 15 coastal erosion ‘hotspots’ in 11 council areas along the NSW coast. As a result of this ‘hotspot’ designation, and Council’s request to withdraw the draft CZMP (2010) Council was given a Direction on 12 October 2011 by the Minister to submit a draft CZMP in accordance with the requirements under Part 4A of the CP Act for the coastline that is a beach between the southern extremity of the beach within Tyagarah Nature Reserve and Cape Byron, known as Belongil, Main Beach and Clarkes Beaches, Byron Bay. This area was named the ‘Byron Bay Embayment’.

CZMP for the Byron Bay Embayment (2016)

From the date of the Ministerial Direction issued in 2011, Council commenced preparation of a draft CZMP for the Byron Bay Embayment (CZMP BBE 2016) which was submitted to the former Minister for Planning, the Hon Rob Stokes MP for certification under the CP Act on 30 June 2016.

On 28 August 2017 Council received a response from the Minister for Environment (the Hon Gabrielle Upton MP) along with comments and advice from the NSW Coastal Panel which acknowledged the complexity and range of issues associated with preparing a plan for this part of the coast. The main detail of the advice includes:

· The CZMP BBE (2016) did not meet the requirements for certification under the Act. Key elements of the plan dealing with hazard management along Belongil Spit did not meet the requirements for certification.

· The majority of the plan (with the exception of the Belongil Spit Precinct) met relevant requirements of a CZMP BBE (2016) subject to further consideration of funding and community consultation. In particular, Masterplanning for the Jonson Street area (Town Centre) was considered a high priority for implementation.

· The plan proposes actions or activities to be carried out by public authorities, or on land managed by a public authority without the agreement of those authorities.

As such, the Minister returned the plan and invited Council to re-submit a CZMP BBE (2016) for certification which excluded the Belongil Spit in the hope that a CZMP for this area could be certified within six months of repeal of the CP Act, and commencement of the new coastal legislation, the Coastal Management Act 2016 (CM Act). The CM Act commenced on 3 April 2018, and the newly formed needed to be certified by 3 October 2018.

Further advice from the Minister’s office received on 27 October 2017 clarified the Minister’s invitation to re-submit a plan excluding the Belongil Spit and urged Council to being working on a Coastal Management Program (CMP) for the Belongil Beach precinct under the new coastal legislation. Or as an alternative, Council may wish to address the entire Byron Bay Embayment in a single new CMP under the new legislation.

CZMP for the Eastern Precincts of the Byron Bay Embayment (2018)

At the 26 October 2017 meeting, Council resolved (Res 17-521) to develop a newly formed CZMP for Cape Byron to Main Beach only (excluding the Belongil Spit) for re-submission and Ministerial certification within the pending timeframes of the repeal of the CP Act.

The area was named the ‘Eastern Precincts of the Byron Bay Embayment’ and includes the beaches of Wategos/Little Wategos, The Pass, Clarkes Beach and Main Beach.

Council’s decision was based on the following:

· The considerable amount of work and resources that had been spent on the preceding CZMP BBE (2016);

· The Ministers advice which outlined the majority of the plan (with the exception of the Belongil Spit precinct) meeting relevant requirements for certification under the CP Act; and

· The commitment of Council to progress the upgrade/modification of the Jonson Street coastal protection works to protect the Town Centre and improve public safety and amenity.

A plan to address the Western Precincts of the BBE encompassing precincts of Cavvanbah, Belongil Beach and North Beach was anticipated to be developed under the CM Act as a Coastal Management Program (CMP).

Council staff worked in close consultation with representatives of the Office of the Environment and Heritage (OEH) for 8 months to develop the CZMP (2018) that conform to the assessment and designated certification criteria of the CP Act. Pursuant to section 55C(2)(b) of the Act, Council gained written correspondence from all public authorities indicating their agreement to the plan.

A considerable amount of time was spent developing the plan in accordance with the Minister’s advice and invitation received, by both Council and OEH staff. On 4 July 2018 the plan was re-submitted to the Minister under section 55G of the CP Act, along with public agency agreement on the 1 August 2018.

The CZMP has a long history and Council under the advice of the Minister’s office made a concerted effort to re-submit the plan within the pending timeframes for approval. During the CZMP assessment period, Council sought the urgent action of the Minister to progress the CZMP through the Ministerial certification process along with advice on the suitability of the CZMP for certification.

The Minister was notified that the CZMP is a very important plan for the management of this part of the coast within Byron Shire, NSW and without certification Council will not be able to progress with the upgrade/modification of the coastal protection works at Jonson Street.

Following a lengthy deliberation of the CZMP (2018) by OEH, formal written advice from the Chief Executive, Anthony Lean was received 16 October 2018 (Attachment 1), as a follow up to a phone discussion with the General Manager on the 12 October 2018. Formal advice received (Attachment 1) outlined that:

· The decision to separate the previous CZMP BBE (2016) into two locations and develop a newly formed plan excluding the Belongil Spit has not satisfied key stakeholders within the local community - most notably the landholders of properties at Belongil Beach;

· There is considerable legal uncertainty as to whether the CZMP (2018) as re-submitted to the Minister is able to be considered and certified under the terms of the transitional provisions of the CP Act.

As such OEH did not consider it appropriate to recommend to the Minister that she certify the CZMP (2018), and instead returned it to Council advising Council to commence development of a CMP for the whole Byron Bay Embayment.

A meeting was held with OEH staff and Council on 25 October 2018 to discus the implications of non-certification of the plan. As discussed at the meeting, the rationale for OEH not recommending to the Minister that she certify the plan is primarily due to the risk of legal proceedings that may stall progress of the actions in the CZMP (2018) and tie up staff and resources.

OEH are committed to assisting Council in developing CMPs for the Byron coastline and will prioritise resources to achieve this.

Notwithstanding the above, the response from OEH and non-certification of the CZMP (2018) should be explored further as there are major implications to Council and considerable time and resources were spent on developing the plan based on the previous advice received by the Minister. The response from OEH is conflicting with the Minister’s original invitation to re-submit a plan excluding the Belongil Spit and subsequent advice clarifying this avenue for certification of the plan. As such, it is recommended that a meeting is requested with the Minister and the Premier for re-consideration of certification of the plan.

Ministerial Direction issued in 2011

At the time of developing the newly formed CZMP (2018), Council was aware that until such time that a plan/s encompassing the entire spatial extent of the Byron Bay Embayment (between the southern extremity of the beach within Tyagarah Nature Reserve and Cape Byron) is certified by the Minister, the Ministerial direction issued to Council in 2011 still stands. Council has been recently informed that the Ministerial Direction is no longer valid, however it is recommended that Council seek formal correspondence in writing on this matter.

Upgrade/modification of the Jonson Street Protection Works (JSPW)

The coastal protection works at Main Beach (JSPW) are degraded and not to contemporary engineering standards with Council committed to the re-design and modification of this structure.

Previous advice of the NSW Coastal Panel considered Master Planning of the Jonson Street area (town centre of Byron Bay) a high priority for implementation. As such, the upgrade/modification of the JSPW is at the forefront of the CZMP (2018).

Council is committed to progressing this project and submitted a funding application to the Coastal and Estuary Grants Program on 4 July 2018 to commence the design and planning phase. Council has allocated 50% of the project costs in this year’s budget.

The funding application for $150,000 has been approved by OEH with a total project estimate of $300,000. The first component of the project will commence prior to December 2018.

CMP Stage One Scoping Study for the Byron Shire Coastline

Council has recently secured 50% funding from the Coastal and Estuary Grants Program (OEH) to embark on the new coastal management process in accordance with the new CM Act. The funding will go towards the first stage of this process, being a Scoping Study for the Byron Shire Coastline.

The Scoping Study is the first step in 5 stages of planning to develop a CMP under the new CM Act. The Scoping Study will consider coastal hazards and the open coast between Cape Byron and the northern extent of the Shire boundary, primarily focussing on Belongil and New Brighton Beach where property and infrastructure are at risk. A consultant has been engaged with the project expected to be delivered by April 2019.

Financial Implications

Council has allocated 50% of the project costs for the JSPW upgrade in this year’s budget ($150,000).

Council has allocated $35,000 in this year’s budget to undertake Stage One of the CMP process (Scoping Study) for the Byron Shire Coastline.

Statutory and Policy Compliance Implications

Coastal Management Program to be developed in accordance with the Coastal Management Act 2016 and associated NSW Coastal Manual.

Requested funds from funding bodies	13,869,743
Council cash contribution	4,814,356
Council in-kind Contribution	121,857
Other contributions	8,730,545
Funding applications submitted and awaiting notification (total project value)	27,536,501

Donations to Community Organisations, Other Groups and Persons	$36,200.00
Assistance for Festivals and Community Functions	$7,000.00
Donations to Community Groups – Reimbursement of Council Application Fees	$2,000.00
Sub-Total	$45,200.00
Project 1	-$5,000.00
Project 2	-$4,520.00
Project 3	-$5,000.00
Project 4	-$5,000.00
Project 5 (reimbursement of fees)	-$2,001.37
Project 6 (reimbursement of fees)	-$1,000.00
Project 7	-$4,940.00
TOTAL remaining unallocated amount for 2018/19	$17,738.63